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2020 Archive | Most Recent Court of Appeals Summaries

For summaries from opinions prior to August, 2018, view PDF versions here

Opinion Summaries

Case No. 17-0729:  State of Iowa v. Khamfay Lovan

Filed Jun 03, 2020

View Opinion No. 17-0729

            Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson and David M. Porter, Judges.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  May, J., takes no part.  Opinion by Schumacher, J.  (14 pages).

            Khamfay Lovan appeals his convictions for possession of methamphetamine with intent to deliver and possession of a firearm by a felon.  OPINION HOLDS: Lovan was not denied his right to a speedy trial.  We conclude the district court properly denied Lovan’s motion to suppress.  Lovan has not shown he received ineffective assistance of counsel.  We affirm Lovan’s convictions.

Case No. 18-1277:  John E. Morrow v. Dan Kehret, June Kehret, and Victoria Kehret

Filed Jun 03, 2020

View Opinion No. 18-1277

            Appeal from the Iowa District Court for Page County, Richard H. Davidson, Judge.  AFFIRMED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (5 pages)

            Plaintiff appeals the district court’s rulings on several issues in his defamation action.  OPINION HOLDS: We affirm on the motion to compel, the motion in limine, and the partial directed verdict at the close of plaintiff’s case.  We find plaintiff’s arguments concerning whether certain statements were protected by a qualified privilege to be irrelevant, as the jury must have found defendants met their burden to prove the affirmative defense of truth.  For this same reason, the court did not err by granting a directed verdict on statements made to a third party who repeated the statements to others.

Case No. 18-1522:  State of Iowa v. Laron D'Pree Hampton

Filed Jun 03, 2020

View Opinion No. 18-1522

            Appeal from the Iowa District Court for Mills County, Timothy O’Grady, Judge.  JUDGMENT OF CONVICTIONS AFFIRMED, and SENTENCES AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J. (15 pages)

            A defendant appeals his conviction on three counts of second-degree sexual abuse. OPINION HOLDS: The defendant did not receive ineffective assistance of counsel.  We reverse only the determinations as to restitution, which should be calculated in accordance with Iowa Supreme Court precedent.

Case No. 18-1553:  Bela Animal Legal Defense and Rescue v. City of Des Moines, Des Moines City Council, Christine Hensley, Chris Coleman, Skip Moore, Linda Westergaard, Bill Gray, and T.M. Franklin Cownie

Filed Jun 03, 2020

View Opinion No. 18-1553

            Appeal from the Iowa District Court for Polk County, Jeffrey Farrell, Douglas F. Staskal, and Jeanie Vaudt, Judges.  APPEAL DISMISSED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J.  (5 pages)

                A municipality and several officials appeal following a district court ruling determining their motion for summary judgment to be moot, arguing the district court erred in granting the appellee additional time to respond to their motion for summary judgment, and claiming the court should have ruled on the motion.  OPINION HOLDS: We find no remaining justiciable controversy and dismiss the appeal as moot.

Case No. 18-1729:  State of Iowa v. Michael G. Gerken

Filed Jun 03, 2020

View Opinion No. 18-1729

            Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.  JUDGMENT OF CONVICTION AFFIRMED; SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.  Gamble, S.J., takes no part.  Opinion by Vaitheswaran, P.J. (10 pages)

            Michael Gerken appeals his convictions of first-degree theft and ongoing criminal conduct, contending (1) the evidence was insufficient to support the jury’s findings of guilt, (2) the district court abused its discretion “in allowing the State to reopen the record to provide additional evidence on essential elements of ongoing criminal conduct,” (3) his trial attorney was ineffective in “handling the jury instructions for both offenses,” and (4) the district court erred in ordering “an unknown amount of attorney fees.”  OPINION HOLDS: We affirm Gerken’s convictions, and we vacate the provision in the order of disposition requiring Gerken to make restitution and remand for further proceedings. 

Case No. 18-1809:  State of Iowa v. Safet Velic

Filed Jun 03, 2020

View Opinion No. 18-1809

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.  AFFIRMED.  Considered by Bower, C.J., and Doyle and Schumacher, JJ.  Opinion by Bower, C.J.  (5 pages)

            Safet Velic appeals his convictions for burglary and domestic abuse assault causing bodily injury.  Velic contends the district court should have excluded some testimony from the trial as hearsay.  OPINION HOLDS: We find the testimony was properly admitted under the excited-utterance exception to the rule against hearsay and affirm.

Case No. 18-2194:  Roger James Cheshire v. State of Iowa

Filed Jun 03, 2020

View Opinion No. 18-2194

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED.  Considered by Bower, C.J., Schumacher, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (6 pages)

            Roger Cheshire appeals the district court decision denying his application for postconviction relief.  OPINION HOLDS:  We conclude Cheshire has not shown he was prejudiced by defense counsel’s performance.  We find the district court properly rejected Cheshire’s claim of ineffective assistance of defense counsel.  We do not address Cheshire’s claim of ineffective assistance of postconviction counsel.

Case No. 19-0129:  City of Ottumwa v. Larry D. Clabaugh

Filed Jun 03, 2020

View Opinion No. 19-0129

            Appeal from the Iowa District Court for Wapello County, Shawn R. Showers and Gregory G. Milani, Judges.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (9 pages)

            Larry Clabaugh owns residential property in Ottumwa.  The city alleges he used that property to store junk motor vehicles—violating zoning ordinances.  At trial, the district court denied Clabaugh’s last minute motion for continuance and advised Clabaugh that the court would enter a default judgment if he left the courtroom.  Clabaugh left trial despite the court’s remarks.  He now appeals the court’s denial of a continuance and entry of default judgment.  OPINION HOLDS: The record does not support Clabaugh’s contention that the continuance was necessary to prevent injustice.  And the city had a right to timely enforcement of its ordinances.  And, because both parties agreed that Clabaugh was a vital witness, defense counsel anticipated his client faced default if he left the courtroom.  The district court properly entered default under Iowa Rule of Civil Procedure 1.971(3).  

Case No. 19-0148:  State of Iowa v. Michael Wedgwood

Filed Jun 03, 2020

View Opinion No. 19-0148

            Appeal from the Iowa District Court for Black Hawk County, Joel E. Dalrymple, Judge.  CONVICTIONS AFFIRMED, SENTENCE VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., Ahlers, J., and Vogel, S.J.  Opinion by Vogel, S.J. (8 pages)

            Michael Wedgwood appeals his conviction and sentence for assault on a peace officer and interference with official acts resulting in bodily injury.  OPINION HOLDS: The district court did not err in submitting jury instructions without language on justification because the record contains no basis to conclude Michael used reasonable force in response to the officers’ actions.  However, the court did not evaluate Michael’s reasonable ability to pay before ordering restitution.  We affirm his convictions, vacate the restitution order, and remand for resentencing.

Case No. 19-0220:  Winters v. Christen

Filed Jun 03, 2020

View Opinion No. 19-0220

            Appeal from the Iowa District Court for Allamakee County, Margaret L. Lingreen, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J.  (5 pages)

            Appellants appeal an order granting summary judgment in a quite-title action.  OPINION HOLDS: We affirm the order granting summary judgment in favor of the appellees. 

Case No. 19-0276:  State of Iowa v. Keyshaun Vaughn Jones

Filed Jun 03, 2020

View Opinion No. 19-0276

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J. (10 pages)

            Keyshaun Jones appeals his conviction for perjury, asserting the district court erred in admitting hearsay evidence and his trial counsel was ineffective in failing to object to impermissible vouching testimony from a police witness.  OPINION HOLDS: Because the evidence fits the hearsay exception for statements against interest, the court did not err.  We also find the disputed testimony was permissible because it did not vouch for a witness at trial and did not comment on credibility.  Rather, it described how Jones’s deposition testimony contradicted facts from the police investigation and Jones’s previous statements to police.  Thus, we affirm. 

Case No. 19-0278:  State of Iowa v. Tristin Alderman

Filed Jun 03, 2020

View Opinion No. 19-0278

            Appeal from the Iowa District Court for Scott County, Mary E. Howes, Judge.  CONVICTIONS AFFIRMED; SENTENCE VACATED IN PART AND REMANDED.  Considered by Tabor, P.J., and May and Greer, JJ.  Opinion by Greer, J.  (28 pages)

            Tristin Alderman appeals from his convictions of first-degree murder, first-degree robbery, and conspiracy to commit first-degree burglary.  Alderman (1) maintains the trial court abused its discretion in twice granting the motion to continue of Alderman’s co-defendant; (2) contests several evidentiary rulings of the court; (3) challenges the sufficiency of the evidence supporting his convictions; (4) argues the court impermissibly sentenced him to consecutive terms of incarceration and considered improper factors when doing so; and (5) challenges the portion of the court’s sentencing order requiring Alderman to pay attorney fees and court costs as part of restitution.  OPINION HOLDS: Finding no reversible error, we affirm Alderman’s convictions.  We vacate the portions of the sentencing order requiring Alderman to pay court costs and attorney fees and remand for determination of Alderman’s reasonable ability to pay, but we otherwise affirm Alderman’s sentences.

Case No. 19-0295:  State of Iowa v. Timothy M. Fontenot

Filed Jun 03, 2020

View Opinion No. 19-0295

            Appeal from the Iowa District Court for Linn County, Patrick R. Grady, Judge.  AFFIRMED.  Considered by Bower, C.J., Mullins, J., and Scott, S.J.  Opinion by Scott, S.J. (7 pages)

           

            Timothy Fontenot appeals his convictions on two counts of indecent contact with a child, claiming the district court erred in admitting hearsay evidence contained in a video of a forensic interview of his victim.  OPINION HOLDS: We conclude the bulk of the forensic interview video was properly admitted as non-hearsay prior consistent statements and Fontenot suffered no prejudice from the admission of the inconsistent statements contained in the video of the interview.  As such, we affirm Fontenot’s dual convictions of indecent contact with a child. 

Case No. 19-0314:  State of Iowa v. Thomas Allen Bibler

Filed Jun 03, 2020

View Opinion No. 19-0314

            Appeal from the Iowa District Court for Plymouth County, Jeffrey A. Neary, Judge.  AFFIRMED.  Considered by Mullins, P.J., Greer, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (9 pages)

            Thomas Bibler appeals his conviction for second-degree murder.  He claims his involuntary intoxication provides him a complete defense to the crime.  OPINION HOLDS: Iowa Code section 701.5 (2016) defining the intoxication defense does not differentiate between voluntary or involuntary intoxication.  And section 701.5 only negates specific intent; it does not provide a complete defense.

Case No. 19-0320:  State of Iowa v. Dawarn Lamar Moncrief

Filed Jun 03, 2020

View Opinion No. 19-0320

            Appeal from the Iowa District Court for Des Moines County, Mark E. Kruse, Judge.  AFFIRMED.  Considered by Tabor, P.J., May, J., and Blane, S.J.  Opinion by Blane, S.J.  (5 pages)

            Dawarn Lamar Moncrief appeals his convictions for possession with intent to deliver methamphetamine, possession of contraband, and failure to possess a tax stamp.  His appeal is based solely on a claim of ineffective assistance of his trial counsel for failing to take pre-trial depositions of the State’s witnesses and failing to sufficiently cross-examine the State’s witnesses at trial.  OPINION HOLDS: We find the record inadequate to address these ineffective-assistance-of-counsel claims on direct appeal.  We preserve them for possible postconviction-relief proceedings and affirm the convictions.

Case No. 19-0324:  State of Iowa v. Christopher Anthony Holton

Filed Jun 03, 2020

View Opinion No. 19-0324

            Appeal from the Iowa District Court for Woodbury County, Todd A. Hensley, District Associate Judge.  REVERSED AND REMANDED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (5 pages)

            Christopher Holton appeals his conviction and sentence for operating while under the influence, third offense.  Holton contends the district court erred in not sentencing him in accordance with the plea agreement or affording him a chance to withdraw his plea.  Holton also claims his counsel provided ineffective assistance.  OPINION HOLDS: We find the court failed to either sentence Holton as provided in the plea agreement or reject the agreement and provide him the opportunity to withdraw from the plea.  We reverse and remand for further proceedings.

Case No. 19-0399:  Linda Hovden, Individually and Linda Hovden Revocable Trust v. Dwaine Lemke and Cherly Lemke

Filed Jun 03, 2020

View Opinion No. 19-0399

            Appeal from the Iowa District Court for Winneshiek County, Linda M. Fangman, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J.  (9 pages)

            Linda Hovden appeals from a district court order denying her relief related to the purchase of her home.  She appeals the district court’s decisions related to alleged violations of Iowa Code chapter 558A (2017) and trial attorney fees.  Dwaine and Cheryl Lemke (Lemkes) request attorney fees on appeal.  OPINION HOLDS: On our review, we find substantial evidence supported the findings of the district court.  We affirm the dismissal of Hovden’s claims the Lemkes violated chapter 558A.  Because we affirm the district court’s decision on the merits, we also affirm its decision to deny Hovden’s claim for trial attorney fees.  We deny the Lemkes’ request for appellate attorney fees. 

Case No. 19-0482:  State of Iowa v. Zackery Rigel

Filed Jun 03, 2020

View Opinion No. 19-0482

            Appeal from the Iowa District Court for Chickasaw County, Richard D. Stochl, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Schumacher, J., and Scott, S.J.  Opinion by Scott, S.J.  (5 pages)

                Zackery Rigel appeals the sentencing requirement that he register as a sex offender following resentencing on remand.  OPINION HOLDS: We affirm the re-imposition of the requirement that Rigel register as a sex offender.

Case No. 19-0495:  In re the Marriage of Schmidt

Filed Jun 03, 2020

View Opinion No. 19-0495

            Appeal from the Iowa District Court for Palo Alto County, Nancy L. Whittenburg, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Vaitheswaran, P.J.  (9 pages)

            James Schmidt appeals from the decree of separate maintenance entered by the district court with regard to his marriage to Beverly Schmidt.  James contends the district court should have (1) dissolved the marriage, (2) characterized certain “financial benefits . . . from his mother” as separate inherited or gifted property; (3) awarded less alimony; and (4) not ordered him to pay attorney and guardian ad litem fees.  OPINION HOLDS: We affirm the decree of separate maintenance entered by the court.

Case No. 19-0520:  State of Iowa v. Monroe County District Court (Magistrate Division)

Filed Jun 03, 2020

View Opinion No. 19-0520

            Appeal from the Iowa District Court for Monroe County, Gregory Milani, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (6 pages)

            Steven Dees appeals the entry of writ of certiorari in favor of the State, which set aside an order granting Dees’s motion for return of seized property.  OPINION HOLDS: Because Dees’s failure to tag a deer within fifteen minutes supports the State’s confiscation of the deer’s cape and antlers, we affirm.

Case No. 19-0569:  Vadim Igorevich Shultsev v. State of Iowa

Filed Jun 03, 2020

View Opinion No. 19-0569

            Appeal from the Iowa District Court for Warren County, Brendan Greiner, District Associate Judge.  SENTENCE VACATED IN PART AND REMANDED FOR DETERMINATION OF RESTITUTION.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J. (7 pages)

            Vadim Shultsev appeals the sentence imposed after he pled guilty to the charge of operating a motor vehicle while barred, in violation of Iowa Code sections 321.560 and 321.561 (2018).  Shultsev argues the court failed to state adequate reasons for the sentence imposed on the record.  He also challenges the restitution ordered by the district court at sentencing.  OPINION HOLDS: Because we find no abuse of discretion by the district court with the sentencing term, we affirm the sentencing decision.  We vacate the restitution order and remand for further proceedings to determine Shultsev’s reasonable ability to pay.

Case No. 19-0681:  Cathy Kula, Charlene Knutsen, Mavis Engler, Denise Kula and David Kula v. Leanna Manternach and Daniel Kula

Filed Jun 03, 2020

View Opinion No. 19-0681

            Appeal from the Iowa District Court for Jones County, Chad Kepros, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by May, J.  (5 pages)

            The appellants appeal the dismissal of their petition requesting Doris Kula’s attorneys-in-fact provide a complete accounting.  OPINION HOLDS: We affirm the district court’s dismissal of the petition.

Case No. 19-0811:  Roman Moncivaiz v. State of Iowa

Filed Jun 03, 2020

View Opinion No. 19-0811

            Appeal from the Iowa District Court for Story County, Angela L. Doyle, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (4 pages)

            Roman Moncivaiz appeals the denial of his application for postconviction relief.  OPINION HOLDS: We agree that Moncivaiz failed to show his trial or appellate counsel were ineffective in representing him.  Nor can he show he was prejudiced by the cumulative effect of any errors.  And we cannot resolve his new claim that postconviction counsel was ineffective on the record before us on appeal.

Case No. 19-0827:  Samantha Jo Fink v. Kevin William Brady

Filed Jun 03, 2020

View Opinion No. 19-0827

            Appeal from the Iowa District Court for Polk County, Celene Gogerty, Judge.  AFFIRMED AS MODIFIED.  Considered by Vaitheswaran, P.J., Ahlers, J., and Scott, S.J.  Opinion by Ahlers, J.  (6 pages)

            Kevin Brady appeals the district court’s decision not to grant an extraordinary visitation credit when it modified the parties’ custody and support decree.  OPINION HOLDS: The record supports a finding that Kevin has been awarded 130 to 146 days of overnight visitation per year.  Therefore, he is entitled to a fifteen percent extraordinary visitation credit.  The amount of Kevin’s child support obligation is modified accordingly, and all other terms of the district court’s order are affirmed.

Case No. 19-0839:  State of Iowa v. Sullivan Pierre Smith-Berry

Filed Jun 03, 2020

View Opinion No. 19-0839

            Appeal from the Iowa District Court for Johnson County, Paul D. Miller, Judge.  CONVICTIONS REVERSED IN PART, SENTENCES VACATED, AND REMANDED WITH INSTRUCTIONS.  Considered by Bower, C.J., Schumacher, J., and Vogel, S.J.  Opinion by Bower, C.J. (9 pages)

            Sullivan Pierre Smith-Berry appeals his convictions for sexual assault and three counts of robbery in the first degree, asserting his conduct constituted only one act of robbery—not three—and his trial counsel was ineffective by failing to challenge the sufficiency of the evidence on two additional counts of robbery.  Smith-Berry also argues the district court lacked statutory authority to require him to complete sex-offender assessment and treatment after imposing a sentence of incarceration for his sexual-assault conviction, and he asks to be resentenced on his robbery convictions pursuant to the recently enacted Iowa Code section 902.12(3) and 901.11(3) (2019).  OPINION HOLDS: We reverse two robbery convictions, vacate the sentences, and remand for resentencing.

Case No. 19-0843:  State of Iowa v. Robert Paul Mahoney

Filed Jun 03, 2020

View Opinion No. 19-0843

            Appeal from the Iowa District Court for Woodbury County, Patrick H. Tott, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by May, J.  (13 pages)

            After starting a fire in his apartment, Mahoney appeals his convictions of first-degree arson and involuntary manslaughter.  He argues there was insufficient evidence for both convictions.  OPINION HOLDS:  We find sufficient evidence and affirm both convictions.

Case No. 19-0947:  State of Iowa v. Marissa Marie Johnson

Filed Jun 03, 2020

View Opinion No. 19-0947

            Appeal from the Iowa District Court for Black Hawk County, Linda M. Fangman, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J.  (10 pages)

           

            Marissa Johnson challenges her conviction for attempted second-degree burglary, arguing there was insufficient evidence of specific intent, her counsel was ineffective by failing to request the burglary marshaling instruction include the entering alternative, and her counsel was ineffective by failing to object to hearsay or request a limiting instruction.  OPINION HOLDS: We find sufficient evidence of specific intent to support Johnson’s conviction, Johnson has failed to show deficient performance or prejudice based on her counsel’s failure to request the entering alternative, and the hearsay statements fell under the present sense impression exception to the hearsay rule and her counsel did not breach an essential duty by failing to object.  We affirm her conviction.

Case No. 19-0961:  In re the Marriage of Aldama

Filed Jun 03, 2020

View Opinion No. 19-0961

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Erendira Aldama appeals the district court’s denial of her petition to modify the decree dissolving her marriage to Christopher Aldama.  OPINION HOLDS: On our de novo review of the record, we conclude the district court acted equitably in denying Erendira’s petition to modify the physical care or visitation provisions of the dissolution decree. 

Case No. 19-0984:  In the Interest of J.T.,

Filed Jun 03, 2020

View Opinion No. 19-0984

            Appeal from the Iowa District Court for Montgomery County, Amy Zacharias, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by May, J.  (7 pages)

 

            J.T. appeals his delinquency adjudication for an act constituting third-degree sexual abuse.  He argues (1) his constitutional rights were violated when he and the public were excluded from the hearing during the alleged victim’s testimony and (2) there was insufficient evidence to support the delinquency finding.  OPINION HOLDS: We find error was not preserved on the exclusion claim.  And we find sufficient evidence supports the adjudication.

Case No. 19-0988:  Monue Forkpayea Geimah v. State of Iowa

Filed Jun 03, 2020

View Opinion No. 19-0988

            Appeal from the Iowa District Court for Poweshiek County, Crystal S. Cronk, Judge.  AFFIRMED.  Considered by Bower, C.J., and Doyle and Schumacher, JJ.  Opinion by Bower, C.J.  (13 pages)

            Monue Forkpayea Geimah appeals the denial of his application for postconviction relief (PCR).  He maintains plea counsel was ineffective in failing to advise him of the immigration consequences of pleading guilty to theft in January 2017.  OPINION HOLDS: On our de novo review, we conclude plea counsel did not inform Geimah “of all the adverse immigration consequences that competent counsel would uncover,” but Geimah failed to prove he would not have pleaded guilty had he been adequately advised.

Case No. 19-1001:  Angela Marie Clark v. Darryl Lee Downs and Jennifer D. Downs

Filed Jun 03, 2020

View Opinion No. 19-1001

            Appeal from the Iowa District Court for Dallas County, Randy V. Hefner, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J.  (18 pages)

            Angela Clark brought suit against her neighbors, Darryl and Jennifer Downs, for trespass and harassment.  Clark had some success at trial, but she appeals the jury verdict, claiming that the district court made several errors during the trial.  Clark asserts the trespass instruction should have required the jury to award damages because of the admission of trespass, the court erred by not instructing on spoliation of photographic evidence, the court abused its discretion by failing to grant a permanent injunction prohibiting trespassing, and, finally, the court erred by denying the motion for additur or new trial based on an inadequate verdict.  OPINION HOLDS: Under the specific facts of this case, we find any error in the instructions was harmless, the instruction on spoliation was not warranted, the district court did not abuse its discretion by failing to grant a permanent injunction prohibiting trespassing, and, finally, the court properly denied the motion for additur or new trial.

Case No. 19-1021:  Sydney Bowlin v. William Cody Swim

Filed Jun 03, 2020

View Opinion No. 19-1021

            Appeal from the Iowa District Court for Warren County, Randy V. Hefner, Judge.  AFFIRMED.  Considered by Bower, C.J., and Doyle and Schumacher, JJ.  Opinion by Doyle, J.  (20 pages)

            William Cody Swim (Cody) appeals the district court’s custody ruling placing his and Sydney Bowlin’s child in Bowlin’s sole legal custody, among other things.  OPINION HOLDS: Upon our de novo review of the entire record and considering the relevant law, we conclude the district court did not err or abuse its discretion in admitting the custody evaluator’s report into evidence.  In any event, because our review is de novo and consideration of the report is unnecessary to reach the issues present here, we do not consider the report in our decision.  On the issues over sole legal custody, we reject Cody’s challenge to the sole custody award for lack of adequate notice, and we agree with the court that Cody’s actions show joint legal custody was not a viable option here.  Additionally, upon our review, we cannot say the district court abused its discretion in finding Cody willfully and wantonly disregarded its prior ruling that ordered Cody to pay an amount of Sydney’s attorney fees by a certain date.  Finally, we cannot find the district court abused its discretion in awarding Sydney trial attorney fees.  For all of these reasons, we affirm the district court’s custody ruling in all respects.  We decline to award appeallate attorney fees.  Any costs on appeal are assessed equally to the parties.

Case No. 19-1042:  Acterra Group, Inc. v. Kick Group Technologies (USA) Inc.

Filed Jun 03, 2020

View Opinion No. 19-1042

            Appeal from the Iowa District Court for Linn County, Mitchell E. Turner, Judge.  REVERSED AND REMANDED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J.  (6 pages)

            Acterra Group, Inc., (Acterra) appeals a district court order dismissing its petition for lack of personal jurisdiction.  Acterra argues the district court improperly raised the personal jurisdiction issue sua sponte and that the contract’s forum selection clause was not exclusive.  OPINION HOLDS: Although district courts have the power to dismiss claims sua sponte, that limited power does not extend to issues outside the contemplation of the parties.  Because there is no record the parties ever raised the issue of personal jurisdiction before the court, we reverse the dismissal and remand to the district court for further proceedings. 

Case No. 19-1056:  State of Iowa v. Noelle Diane Cosby

Filed Jun 03, 2020

View Opinion No. 19-1056

            Appeal from the Iowa District Court for Lee (North) County, Michael J. Schilling, Judge.  AFFIRMED.  Considered by Tabor, P.J., and May and Greer, JJ.  Opinion by Tabor, P.J.  (4 pages)

            Cosby appeals a five-year sentence imposed by the district court for the charge of involuntary manslaughter.  She was driving her vehicle while under the influence.  She lost control of her vehicle and got into an accident.  Her husband was a passenger of the vehicle and he died as a result of his injuries.  On appeal, Cosby contends incarceration was not appropriate because she accepted responsibility for her actions.  OPINION HOLDS: Because the court’s consideration of deterrence falls within its mandate to impose a sentence that “protect[s] . . . the community from further offenses by the defendant and others” we find the district court’s rejection of more lenient sentencing options is not an abuse of its discretion.

Case No. 19-1086:  State of Iowa v. Jason Dale Charlet

Filed Jun 03, 2020

View Opinion No. 19-1086

            Appeal from the Iowa District Court for Dallas County, Thomas P. Murphy, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Vaitheswaran, P.J.  (3 pages)

            Jason Charlet appeals his plea of guilty to eluding and operating a motor vehicle while intoxicated, third offense, contending that (1) his plea was not knowing and intelligent and (2) his attorney was ineffective in “fail[ing] to fully discuss the consequences of a plea and available defenses.”  OPINION HOLDS: Because Charlet’s guilty plea was knowing, voluntary, and intelligent, and because counsel did not breach an essential duty in conferring with Charlet about the plea, we affirm.

Case No. 19-1119:  State of Iowa v. Joshua Leon Begle

Filed Jun 03, 2020

View Opinion No. 19-1119

            Appeal from the Iowa District Court for Dubuque County, Robert J. Richter, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and May and Greer, JJ.  Opinion by Greer, J. (8 pages)

            Joshua Begle challenges the sentence imposed following his guilty plea.  Begle claims his case should be remanded for resentencing because the court improperly considered his parole eligibility, abused its discretion by imposing a consecutive rather than concurrent sentence, and did not state sufficient reasons for the sentence on the record.  OPINION HOLDS: We find all of Begle’s claims without merit and affirm his sentence. 

Case No. 19-1136:  In re the Marriage of Moreland

Filed Jun 03, 2020

View Opinion No. 19-1136

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Ahlers, J.  (6 pages)

            The wife filed an application seeking to set aside the parties’ decree of dissolution of marriage on the basis that it was procured by extrinsic fraud.  The district court denied her application to set aside the decree, finding she failed to prove the existence of extrinsic fraud.  OPINION HOLDS: The district court’s findings are supported by substantial evidence.  We agree with the district court that the wife failed to meet the burden of proving extrinsic fraud by clear and convincing evidence. 

Case No. 19-1145:  Alejandro Lira v. State of Iowa

Filed Jun 03, 2020

View Opinion No. 19-1145

            Appeal from the Iowa District Court for Clinton County, Marlita A. Greve, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Mullins, J.  (6 pages)

            Alejandro Lira appeals the denial of his application for postconviction relief.  OPINION HOLDS: We find counsel was not ineffective as alleged and conclude Lira failed to meet his burden to establish a violation of the fair cross-section requirement.  As such, we affirm the denial of Lira’s application for postconviction relief.

Case No. 19-1177:  In the Interest of O.R., Minor Child

Filed Jun 03, 2020

View Opinion No. 19-1177

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Vaitheswaran, P.J.  (7 pages)

            A mother appeals the termination of her parental rights to one of her children.  She contends (1) the record lacks clear and convincing evidence to support termination under Iowa Code section 232.116(1)(d) (2019); (2) the department of human services failed to make reasonable efforts to reunify her with her child; and (3) “the juvenile court erred in denying [her] motion to bifurcate the roles of [the child’s] attorney and [guardian ad litem].”  OPINION HOLDS: We affirm the termination of the mother’s parental rights to the child.

Case No. 19-1184:  State of Iowa v. Eddie Delong

Filed Jun 03, 2020

View Opinion No. 19-1184

            Appeal from the Iowa District Court for Cherokee County, Nancy L. Whittenburg, Judge.  AFFIRMED.  Considered by Tabor, P.J., Mullins, J., and Gamble, S.J.  Opinion by Tabor, P.J. (7 pages)

           

            An offender appeals the order imposing restitution for reimbursement of the Crime Victim Assistance Program and for court-appointed attorney fees, contending the court failed to consider his financial resources in finding he is able to pay.  OPINION HOLDS: Because the court appropriately considered the relevant factors in determining whether the imposition of restitution would cause hardship to DeLong, he failed to meet his burden to prove an abuse of discretion.  We affirm. 

Case No. 19-1194:  In the Interest of B.G., Minor Child

Filed Jun 03, 2020

View Opinion No. 19-1194

            Appeal from the Iowa District Court for Keokuk County, Daniel Kitchen, District Associate Judge.  REVErSED AND REMANDED.  Considered by Tabor, P.J., and May and Greer, JJ.  Opinion by May, J.  (4 pages)

            A father appeals the dismissal of his petition to terminate his parental rights.  OPINION HOLDS: Because the court did not provide the father with notice prior to dismissing the petition, we reverse and remand for further proceedings.

Case No. 19-1390:  State of Iowa v. Salvador Cruz, Jr.

Filed Jun 03, 2020

View Opinion No. 19-1309

            Appeal from the Iowa District Court for Polk County, David Porter, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Vaitheswaran, P.J.  (3 pages)

            Salvador Cruz Jr. appeals the sentence entered by the district court following his convictions of possession of methamphetamine, failure to possess a tax stamp, and going armed with a concealed weapon, arguing the district court should have merged “the convictions for failure to possess a tax stamp and possession of a controlled substance.”  OPINION HOLDS: We discern no error in the district court’s refusal to merge the two offenses.   

Case No. 19-1419:  Spencer Allen Brink v. Caricia Lanise Andrews

Filed Jun 03, 2020

View Opinion No. 19-1419

            Appeal from the Iowa District Court for Johnson County, Mitchell E. Turner, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Doyle and May, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Caricia Andrews appeals the district court’s entry of a default decree modifying physical care of the parties’ child.  OPINION HOLDS: We conclude modification of the Illinois agreement to afford Spencer Brink physical care of the child was in the child’s best interests.     

Case No. 19-1429:  State of Iowa v. Bryan Jeffrey Stone

Filed Jun 03, 2020

View Opinion No. 19-1429

            Appeal from the Iowa District Court for Plymouth County, Steven J. Andreasen, Judge.  REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.  Considered by Tabor, P.J., and May and Greer, JJ.  Opinion by Tabor, P.J. (14 pages)

            The State appeals the district court’s grant of Bryan Stone’s motion to suppress evidence found in his vehicle.  The State contends the deputy did not seize Stone until he observed burglar tools in the vehicle.  After that, the deputy developed probable cause to search the vehicle under the automobile exception to the warrant requirement.  OPINION HOLDS: We agree with the State that Stone was not seized until the deputy saw the burglar tools, after which the deputy developed probable cause to search the vehicle.  Further investigation tied Stone to a burglary that occurred earlier that night.  The deputies then properly searched the vehicle under the automobile exception.  We reverse the grant of the motion to suppress and remand for further proceedings. 

Case No. 19-1447:  Leah Quinn Smith, n/k/a Leah Quinn Jones v. Jeremy Richard Smith

Filed Jun 03, 2020

View Opinion No. 19-1447

            Appeal from the Iowa District Court for Lee (South) County, Wyatt P. Peterson, Judge.  AFFIRMED.  Considered by Bower, C.J., and Doyle and Schumacher, JJ.  Opinion by Schumacher, J.  (6 pages)

            Jeremy Smith appeals the district court decision denying his request to modify the physical care provision of the parties’ dissolution decree.  OPINION HOLDS: We conclude Jeremy has not met his heavy burden to establish a material and substantial change in circumstances that would justify a modification of physical care.  We decline to award appellate attorney fees but assess costs to Jeremy.  We affirm the district court’s decision dismissing Jeremy’s petition to modify the decree.

Case No. 19-1511:  Clifford J. Watkins, III v. City of Des Moines, Pat Kozitza, John Desio, and Tony Chiodo

Filed Jun 03, 2020

View Opinion No. 19-1511

            Appeal from the Iowa District Court for Polk County, Samantha Gronewald, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J.  (16 pages)

            Clifford J. Watkins III sued the City of Des Moines and three of its administrators.  He raised claims of racial discrimination in promotions and hostile work environment.  The district court granted the city’s motion for summary judgment.  Watkins asks us to reverse the summary judgment and remand for trial.  OPINION HOLDS: Because Watkins offered evidence that two of three members of the interview panel made statements arguably showing racial animus, he generated a jury question on the city’s motivation in turning him down for a promotion.  We reverse the summary judgment on that claim.  Because Watkins did not create a genuine issue of material fact that “discriminatory intimidation, ridicule and insult” permeated his workplace, the city was entitled to judgment as a matter of law on the hostile work environment claim.  We thus affirm in part, reverse in part, and remand for further proceedings.

Case No. 19-1631:  In the Matter of the Guardianship of L.G.

Filed Jun 03, 2020

View Opinion No. 19-1631

            Appeal from the Iowa District Court for Harrison County, Greg W. Steensland, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Vaitheswaran, P.J.  (9 pages)

            A child’s guardian appeals a district court order terminating the guardianship.  The guardian contends the child’s parents failed to prove a substantial change of circumstances warranting termination or that termination was in the child’s best interests.  OPINION HOLDS: We affirm the termination of the guardianship.  We decline the parties’ requests for appellate attorney fees.

Case No. 19-1733:  In the Interest of O.P., O.P., R.P., and L.P., Minor Children

Filed Jun 03, 2020

View Opinion No. 19-1733

            Appeal from the Iowa District Court for Warren County, Brendan Greiner, District Associate Judge.  AFFIRMED.  Considered by Mullins, P.J., May, J., and Blane, S.J.  Opinion by Blane, S.J.  (5 pages)

            A father appeals the termination of his parental rights to four children, arguing the State failed to make reasonable efforts to reunite him with his children by setting up phone calls with him in prison.  OPINION HOLDS: The father’s requests and the State’s efforts were ultimately hindered by the father’s actions of making a late request on the day of the original termination hearing and later absconding from a prison release program.  Finally, the father was moved to a new prison once he returned to incarceration, and the social worker was unable to set up phone calls before the new termination hearing date.  Under those circumstances, we find the social worker acted reasonably and the State made reasonable efforts to provide the requested service. 

Case No. 19-1826:  Joseph Robert Hugill v. Jenny Lee Hugill

Filed Jun 03, 2020

View Opinion No. 19-1826

            Appeal from the Iowa District Court for Butler County, Rustin Davenport, Judge.  REVERSED AND REMANDED.  Considered by Tabor, P.J., and May and Greer, JJ.  Opinion by May, J.  (6 pages)

            Jenny Hugill appeals the district court’s entry of a civil domestic protective order protecting Joseph Hugill.  OPINION HOLDS: The record does not establish an assault as defined in Iowa Code section 708.1 (2019), and thus does not establish “domestic abuse” within the meaning of section 236.2.  So we reverse and remand for dismissal of the civil domestic protective order

Case No. 19-1874:  In the Interest of C.W., I.W., K.W., and M.W., Minor Children

Filed Jun 03, 2020

View Opinion No. 19-1874

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and Greer, JJ.  Opinion by Greer, J.  (7 pages)

            The mother appeals the termination of her parental rights to four of her children, born between 2010 and 2015.  The mother challenges the statutory grounds for termination, maintains the State failed to make reasonable efforts at reunification, and argues termination of her rights is not in the children’s best interests.  OPINION HOLDS: Because the State proved the statutory ground under Iowa Code section 232.116(1)(d) (2019), made reasonable efforts to reunify the family, and termination of the mother’s rights is in these children’s best interests, we affirm.

Case No. 19-1888:  In the Matter of L.H., Alleged to Be Seriously Mentally Impaired

Filed Jun 03, 2020

View Opinion No. 19-1888

            Appeal from the Iowa District Court for Lee (North) County, Ty Rogers, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Doyle and Schumacher, JJ.  Per Curiam.  (8 pages)

            L.H. appeals the district court decision finding he was seriously mentally impaired.  OPINION HOLDS: We conclude there is substantial evidence in the record to support the district court’s findings that without treatment L.H. would likely inflict serious emotional injury on individuals who lacked a reasonable opportunity to avoid contact with him.  We affirm the court’s decision.

Case No. 19-1999:  In the Interest of N.J., N.W., and N.J., Minor Children

Filed Jun 03, 2020

View Opinion No. 19-1999

            Appeal from the Iowa District Court for Polk County, Lynn Poschner, District Associate Judge.  REVERSED AND REMANDED.  Considered by Doyle, P.J., and Mullins and Greer, JJ.  Opinion by Greer, J.  (13 pages)

            A father appeals the juvenile court permanency order directing the State to proceed with termination of his parental rights to three minor children as well as the order terminating his rights under Iowa Code chapter 232 (2019).  On appeal, the father argues the juvenile court should have granted him six more months to regain custody of the children rather than directing the State to initiate termination proceedings, the State failed to prove grounds for termination, termination is not in the children’s best interests, and an exception should be applied to prevent termination.  OPINION HOLDS: We conclude the father should have been given an additional six months to pursue reunification.  We reverse the termination of the father’s parental rights and remand for vacation of the juvenile court termination order, implementation of a six-month extension, and further proceedings consistent with this opinion.

Case No. 19-2108:  In the Interest of J.H., Minor Child

Filed Jun 03, 2020

View Opinion No. 19-2108

            Appeal from the Iowa District Court for Clayton County, Linnea M.N. Nicol, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Ahlers, J.  (7 pages)

            A mother appeals the termination of her parental rights to her minor child, J.H.  She argues the juvenile court erred when it determined the father met his burden to prove she had abandoned J.H. under Iowa Code section 600A.8(3) (2019) and found termination was in J.H.’s best interest.  OPINION HOLDS: Clear and convincing evidence establishes the mother abandoned J.H. under Iowa Code section 600A.8(3), and termination was in J.H.’s best interest.  We affirm.

Case No. 19-2110:  In the Interest of K.W., Minor Child

Filed Jun 03, 2020

View Opinion No. 19-2110

            Appeal from the Iowa District Court for Polk County, Romonda Belcher, District Associate Judge.  AFFIRMED IN PART AND REMANDED FOR ENTRY OF A NUNC PRO TUNC ORDER.  Considered by Bower, C.J., and Schumacher and Ahlers, JJ.  Opinion by Schumacher, J.  (6 pages)

            A father appeals from a district court order terminating his parental rights with respect to his daughter, K.W.  OPINION HOLDS: We agree with the district court’s determination that termination was in the child’s best interests, and we decline to apply the permissive exceptions to termination found in Iowa Code section 232.116(3) (2019).  Finally, we reject the father’s contention that his due process rights were violated by the district court’s scrivener’s error in the termination order.  The termination order is affirmed.

Case No. 20-0071:  In the Interest of S.B., Minor Child

Filed Jun 03, 2020

View Opinion No. 20-0071

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Doyle and Schumacher, JJ.  Opinion by Bower, C.J.  (6 pages)

            A mother appeals the termination of her parental rights.  She contests the grounds for termination, claims termination is not in the child’s best interests, and requests an additional six months to achieve reunification.  OPINION HOLDS: We affirm.

Case No. 20-0081:  In the Interest of J.H., Minor Child

Filed Jun 03, 2020

View Opinion No. 20-0081

            Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J.  Special Concurrence by Ahlers, J.  (25 pages)

            The State and the paternal grandfather separately appeal the juvenile court’s order removing the Iowa Department of Human Services (DHS) as the child’s guardian.  OPINION HOLDS: We conclude DHS acted unreasonably and not in the best interests of the child by failing to follow Iowa Administrative Code rule 441-200.4(3) in selecting an adoptive family and by overruling the adoption selection staffing’s choice of the foster parents as the adoptive family for this child.  We affirm the juvenile court order removing DHS as the child’s guardian.  SPECIAL CONCURRENCE ASSERTS: Although I concur in the outcome, I write separately for two reasons.  First, I disagree with the conclusion the DHS followed an improper procedure because I do not believe the regulation at issue gives binding decision-making authority to the persons selected to participate in the conference required by the regulation.  Second, I believe it is important to emphasize that the DHS’s failure to give proper preference to the child being placed with the child’s half-sibling is the key factor in deciding to remove the DHS as guardian.

Case No. 20-0112:  In the Interest of M.T., Minor Child

Filed Jun 03, 2020

View Opinion No. 20-0112

            Appeal from the Iowa District Court for Johnson County, Deborah Farmer Minot, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Doyle and Schumacher, JJ.  Opinion by Doyle, J.  (4 pages)

            A mother appeals the termination of her parental rights to her child.  OPINION HOLDS: Because the State proved the grounds for terminating the mother’s parental rights under Iowa Code section 232.116(1)(i) (2019) by clear and convincing evidence, we affirm.

Case No. 20-0141:  In the Interest of A.E., Minor Child

Filed Jun 03, 2020

View Opinion No. 20-0141

            Appeal from the Iowa District Court for Polk County, Kimberly Ayotte, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Greer, JJ.  Opinion by Tabor, J.  (6 pages)

            The appellant challenges the juvenile court’s denial of his motion to intervene in a child-in-need-of-assistance proceeding.  OPINION HOLDS: The proposed intervenor did not show a sufficient interest in the matter to intervene to seek custody.  We find no error and affirm. 

Case No. 20-0211:  In the Interest of A.K., Minor Child

Filed Jun 03, 2020

View Opinion No. 20-0211

            Appeal from the Iowa District Court for Jefferson County, William Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Doyle, P.J., Schumacher, J., and Blane, S.J.  Opinion by Blane, S.J.  (6 pages)

            A father appeals the order terminating his parental rights to an eleven-year-old daughter.  He contends he would have been ready to parent within six months because he would be released from prison on parole soon.  OPINION HOLDS: There is insufficient evidence in the record, other than the father’s assertions, that he will be released on parole in the near future.  He has also never parented the child because he has been incarcerated in another state most of her life.  We do not have reason to believe the need for removal will no longer exist after an extension of six months.  Therefore, we affirm the juvenile court order. 

Case No. 20-0217:  In the Interest of A.C., Minor Child

Filed Jun 03, 2020

View Opinion No. 20-0217

            Appeal from the Iowa District Court for Story County, Stephen A. Owen, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and May and Greer, JJ.  Opinion by May, J.  (5 pages)

            A father appeals the juvenile court’s permanency order establishing a guardianship for one of his children.  He contends the Iowa Department of Human Services did not make reasonable efforts toward reunification and a guardianship is not in the child’s best interest.  OPINION HOLDS: The father did not preserve error on his reasonable-efforts claim.  We conclude establishment of a guardianship is in the child’s best interest.

Case No. 20-0346:  In the Interest of J.H., Minor Child

Filed Jun 03, 2020

View Opinion No. 20-0346

            Appeal from the Iowa District Court for Warren County, Mark F. Schlenker, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers JJ.  Opinion by Mullins, J.  (3 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: We affirm the termination of the mother’s parental rights. 

Case No. 20-0368:  In the Interest of T.B., Minor Child

Filed Jun 03, 2020

View Opinion No. 20-0368

            Appeal from the Iowa District Court for Polk County, Lynn Poschner, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Ahlers, J.  (7 pages)

            An incarcerated father who had not seen his fourteen-year-old child for nearly six years challenges the termination of his parental rights.  He argues reasonable efforts were not made toward reunification and termination of his parental rights is not in the best interest of the child.  OPINION HOLDS: Finding the father’s claims unpersuasive, we affirm the juvenile court’s order terminating the father’s parental rights.

Case No. 20-0422:  In the Interest of M.B. and N.B., Minor Children

Filed Jun 03, 2020

View Opinion No. 20-0422

            Appeal from the Iowa District Court for Pottawattamie County, Scott Strait, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., Mullins, J., and Potterfield, S.J.  Opinion by Potterfield, S.J.  (10 pages)

            The State appeals the juvenile court’s denial of the petition to terminate the parental rights of the mother and father to N.B., born in 2016, and M.B., born in 2017.  The State challenges the juvenile court’s determination that DHS failed to make reasonable efforts to reunify these children with the mother and father and that termination is not in the children’s best interests.  OPINION HOLDS: Because we agree with the juvenile court that the State failed to make reasonable efforts to reunify N.B and M.B. with the mother and father, we affirm the denial of the State’s petition to terminate the parents’ rights.  As the State failed to prove the statutory grounds for termination, we do not consider whether termination is in the children’s best interests.

Case No. 20-0455:  In the Interest of S.H., Minor Child

Filed Jun 03, 2020

View Opinion No. 20-0455

            Appeal from the Iowa District Court for Crawford County, Mary L. Timko, Associate Juvenile Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (8 pages)

            A mother appeals the termination of her parental rights to one of her children.  She contends the State failed to prove the grounds for termination cited by the juvenile court and the juvenile court should have granted her additional time to work toward reunification.  OPINION HOLDS: We affirm the decision of the juvenile court to terminate the mother’s parental rights.

Case No. 20-0466:  In the Interest of Z.M., Minor Child

Filed Jun 03, 2020

View Opinion No. 20-0466

            Appeal from the Iowa District Court for Story County, Stephen A. Owen, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and May and Greer, JJ.  Opinion by May, J.  (5 pages)

            A father appeals the juvenile court’s permanency order that established a guardianship for his child.  He contends the Iowa Department of Human Services did not make reasonable efforts toward reunification and a guardianship is not in the child’s best interest.  OPINION HOLDS: We find the father did not preserve error on his reasonable-efforts claim.  And we conclude establishment of a guardianship is in the child’s best interest.

Case No. 20-0483:  In the Interest of C.F., C.H., and C.V., Minor Children

Filed Jun 03, 2020

View Opinion No. 20-0483

            Appeal from the Iowa District Court for Woodbury County, Stephanie Forker Parry, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., May, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (9 pages)

            A mother appeals the termination of her parental rights to her three children.  OPINION HOLDS: The State established statutory grounds authorizing termination.  Termination is in the children’s best interests.  No exception to termination applies.  And the juvenile court correctly denied the mother’s request for additional time to work toward reunification.

Case No. 20-0547:  In the Interest of P.J., Minor Child

Filed Jun 03, 2020

View Opinion No. 20-0547

            Appeal from the Iowa District Court for Wapello County, William Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Tabor, P.J., May, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (7 pages)

            A father appeals the juvenile court decision terminating his parental rights.  OPINION HOLDS: We find there is sufficient evidence in the record to support termination of the father’s parental rights.  The father did not preserve his claim regarding reasonable efforts.  Termination of the father’s parental rights is in the child’s best interests, and none of the exceptions to termination should be applied.  We affirm the decision of the juvenile court.

Case No. 20-0553:  In the Interest of C.C., Minor Child

Filed Jun 03, 2020

View Opinion No. 20-0553

            Appeal from the Iowa District Court for Tama County, Casey D. Jones, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., May, J., and Vogel, S.J.  Opinion by Vogel, S.J.  (7 pages)

            A mother appeals the termination of her parental rights to her daughter, C.C.  OPINION HOLDS: Agreeing with the juvenile court that the statutory grounds to support termination were proved by clear and convincing evidence, additional time was not warranted, it is in the child’s best interests to terminate parental rights, and no strong parental bond hinders termination, we affirm.

Case No. 18-1537:  Dee v. Burgett

Filed Jun 03, 2020

View Opinion No. 18-1537

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (20 pages)

            Plaintiffs appeal the district court decision granting a directed verdict to defendant on their claims of fraud, breach of fiduciary duty, breach of contract, and promissory estoppel.  OPINION HOLDS: The district court found there was sufficient evidence to present a claim of breach of fiduciary duty to the jury except for the element of damages.  There was sufficient evidence of damages as to some of the plaintiffs, and the court erred by granting a directed verdict on breach of fiduciary duty as to them.  We reverse and remand on this issue.  We affirm the evidentiary ruling of the trial court as to a proceeds model.  For the other claims—breach of contract, promissory estoppel, and fraud—the court did not err in granting a directed verdict.  We affirm the district court on these claims.

 

Case No. 19-0699:  State of Iowa v. Charles L. Cain

Filed Jun 03, 2020

View Opinion No. 19-0699

            Appeal from the Iowa District Court for Polk County, Scott J. Beattie, Judge.  CONVICTIONS AFFIRMED IN PART AND REVERSED IN PART, SENTENCES VACATED, AND REMANDED FOR RESENTENCING.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  (17 pages)

            Charles L. Cain Jr. appeals from convictions for conspiracy to deliver methamphetamine while in possession of a firearm, possession of methamphetamine with intent to deliver while possessing a firearm, and failure to possess a drug tax stamp.  He challenges the sufficiency and weight of evidence supporting his convictions and also contends the court abused its discretion in ruling on the admissibility of evidence.  OPINION HOLDS: There is not substantial evidence supporting a conviction for conspiracy, and we reverse that conviction.  The evidence allows an inference that Cain was aware of and had the ability to control the drugs in the immediate vicinity of the passenger seat, and we affirm the conviction for possession with intent to deliver.  The conviction for failing to possess a drug tax stamp is reversed as the weight of the drugs associated with Cain falls below the statutory threshold.  Because we reverse the convictions for conspiracy and failure to affix a drug tax stamp, we vacate the sentences imposed and remand for resentencing.

Case No. 17-1925:  State of Iowa v. Joshua Russell Guill

Filed May 13, 2020

View Opinion No. 17-1925

            Appeal from the Iowa District Court for Decatur County, Dustria A. Relph, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.  Opinion by Vaitheswaran, P.J. (8 pages)

            Joshua Guill appeals his conviction for second-degree murder, contending that (1) the district court abused its discretion in excluding the testimony of his two younger brothers, who were slated to testify to his “non-violence and patience as a caregiver as they were growing up,” (2) the district court erred in refusing to give a jury instruction on prior inconsistent statements under oath, and (3) his trial attorney was ineffective in failing to object to a jury instruction stating that the jury could consider his out of court statements “just as if they had been made at this trial.”  OPINION HOLDS: We affirm.

Case No. 18-1054:  State of Iowa v. James Allan Mincks

Filed May 13, 2020

View Opinion No. 18-1054

            Appeal from the Iowa District Court for Chickasaw County, Richard D. Stochl, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J. (13 pages)

            James Mincks appeals his convictions for second-degree and third-degree sexual abuse.  He asserts insufficient evidence supports his convictions, the court erred in admitting hearsay and vouching testimony, and trial counsel provided ineffective assistance.  OPINION HOLDS: We find substantial evidence supports the verdicts and the court did not err or abuse its discretion in permitting testimony and affirm.  We preserve one claim of ineffective assistance of counsel for potential postconviction relief and dismiss the other ineffective-assistance claims on the merits. 

Case No. 18-1072:  State of Iowa v. Awadia Majak Deng

Filed May 13, 2020

View Opinion No. 18-1072

            Appeal from the Iowa District Court for Polk County, Carol S. Egly, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J.  (5 pages)

            Awadia Deng challenges her conviction for marijuana possession.  Deng did not move in arrest of judgment to challenge her guilty plea.  She contends the district court failed to warn her of the consequences of not moving in arrest of judgment.  She also alleges her attorney was ineffective in advising her about the immigration consequences of her guilty plea.  OPINION HOLDS: Because both the signed guilty plea and the order accepting the plea contained full explanations of the need to file a motion in arrest of judgment, Deng waived error by opting not to move in arrest of judgment.  Also, because the record is inadequate to resolve her ineffective-assistance claim on direct appeal, we affirm her conviction but preserve her claim for possible postconviction-relief proceedings.

Case No. 18-1623:  State of Iowa v. Anthony Frank Ernst

Filed May 13, 2020

View Opinion No. 18-1623

 

            Appeal from the Iowa District Court for Dubuque County, Michael J. Shubatt, Judge.  REVERSED and REMANDED.  Considered by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.  Opinion by Mullins, J. (10 pages)

            Anthony Ernst appeals his conviction of attempted burglary in the third degree in violation of Iowa Code section 713.6B (2017).  He argues the State failed to produce sufficient evidence to support the verdict and that it is against the weight of the evidence.  He also argues his trial counsel was ineffective in failing to object to the admission of cell phone records.  OPINION HOLDS (after rehearing): Because the evidence was insufficient to support the jury’s verdict, we reverse and remand for judgment of acquittal.

Case No. 18-1703:  State of Iowa v. Raul V. Ruiz, Jr.

Filed May 13, 2020

View Opinion No. 18-1703

            Appeal from the Iowa District Court for Scott County, Joel W. Barrows, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Vaitheswaran, P.J.  (8 pages)

            Raul V. Ruiz Jr. appeals his conviction for failure to comply with sex offender registry requirements, second or subsequent offense, as an habitual offender, contending that: (1) there was insufficient evidence to establish he “knowingly” failed to comply with the registry requirements; (2) the district court’s findings of fact were inadequate; (3) the district court erred in concluding that Iowa Code section 901.8 (2018) required the imposition of consecutive sentences; (4) the conviction was void because of “extrinsic fraud”; (5) the district court erred in interpreting Iowa Code section 692A.103(1) to require registration; and (6) the district court lacked territorial jurisdiction.  OPINION HOLDS: We affirm.

Case No. 18-1884:  State of Iowa v. Patrick Allen Chamberlin

Filed May 13, 2020

View Opinion No. 18-1884

            Appeal from the Iowa District Court for Marshall County, John J. Haney, Judge.  SENTENCE VACATED IN PART, AND REMANDED.  Considered by Mullins, P.J., Schumacher, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (3 pages)

            Patrick Chamberlin appeals the restitution ordered as part of his sentence in four consolidated criminal proceedings.  OPINION HOLDS: We vacate the portion of the sentencing order involving restitution for court costs and correctional fees and remand to the district court for further proceedings consistent with State v. Albright, 925 N.W.2d 144 (Iowa 2019).

Case No. 18-2003:  State of Iowa v. Devario D. Talley

Filed May 13, 2020

View Opinion No. 18-2003

            Appeal from the Iowa District Court for Scott County, Joel W. Barrows, Judge.  REVERSED AND REMANDED FOR NEW TRIAL.  Considered by Tabor, P.J., and May and Greer, JJ.  Opinion by Tabor, P.J. (12 pages)

            Devario Talley challenges his convictions for eluding and child endangerment.  He contends the State did not offer enough evidence to merit an instruction on the alternative theory of aiding and abetting.  OPINION HOLDS: Neither direct nor circumstantial evidence sustains the prosecutor’s belated theory of aiding and abetting.  The record lacked sufficient evidence to support a jury instruction on aiding and abetting.  Also, because the jury returned general verdicts—not specifying between the State’s two theories—we must reverse and remand for a new trial.

Case No. 18-2107:  In the Matter of the Dorothy Driesen Trust Dated July 23, 2002

Filed May 13, 2020

View Opinion No. 18-2107

            Appeal from the Iowa District Court for Sioux County, Jeffrey A. Neary, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J.  (5 pages)

            This case involves yet another attempt by Jay Driesen to collaterally attack a judgment entered in 2008 pertaining to this trust.  He appeals from a series of orders entered November 20, 2018.  OPINION HOLDS: Because Jay has not brought to our attention any issues related to the orders at issue in this appeal and has not cited any relevant authority demonstrating Jay’s entitlement to relief, we deem him to have waived all issues on appeal.  Additionally, since the only claims Jay makes in his briefs are those seeking to collaterally attack the 2008 order, we find such claims to be barred by the doctrine of claim preclusion.  Therefore, we affirm.

Case No. 18-2116:  State of Iowa v. Shanna Dessinger

Filed May 13, 2020

View Opinion No. 18-2116

            Appeal from the Iowa District Court for Webster County, Angela L. Doyle, Judge.  CONVICTION AFFIRMED, SENTENCE VACATED IN PART, AND REMANDED FOR RESENTENCING.2  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by May, J.  (11 pages)

            Following a jury trial, Shanna Dessinger was convicted of child endangerment.  She appeals arguing (1) hearsay was improperly admitted, (2) her Confrontation Clause rights were violated, (3) trial counsel was ineffective, and (4) the district court failed to make an ability-to-pay determination before imposing court costs.  OPINION HOLDS: We affirm Dessinger’s conviction.  We vacate the restitution portion of her sentencing order and remand for resentencing.

Case No. 18-2197:  State of Iowa v. Derris L. Swift

Filed May 13, 2020

View Opinion No. 18-2197

            Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge.  AFFIRMED.  Considered by Tabor, P.J., May, J., and Danilson, S.J.  Opinion by Danilson, S.J. (18 pages).

            Derris Swift appeals his convictions of intimidation with a dangerous weapon, willful injury resulting in serious injury, possession of marijuana, and attempt to commit murder.  OPINION HOLDS:  We find the district court did not abuse its discretion by admitting certain exhibits that were used to impeach the prior inconsistent statements of witnesses.  Swift has not shown he received ineffective assistance of counsel due to counsel’s failure to (1) raise an objection based on State v. Turecek, 456 N.W.2d 219, 225 (Iowa 1990); (2) object on hearsay grounds to evidence used to test a witness’s memory; and (3) request a more specific instruction on the use of impeachment evidence.  Additionally, the plain-error rule is not recognized in Iowa.  We affirm Swift’s convictions.

Case No. 19-0048:  David Michael Johnston v. Iowa Department of Transportation

Filed May 13, 2020

View Opinion No. 19-0048

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Schumacher, J.  (11 pages)

            The Iowa Department of Transportation (IDOT) revoked a man’s driving privileges pursuant to a habitual-offender statute.  He appeals from the district court’s denial of his petition for judicial review.  OPINION HOLDS: The appellant’s argument that the subsection of Iowa’s habitual-offender statute pertaining to eluding contains an element not present in Iowa’s eluding statute was not raised to IDOT and is therefore unpreserved.  Iowa precedent allows IDOT to count a deferred judgment as a “final conviction” for purposes of Iowa Code section 321.555(1) (2018), and it is the date of an offense, not the date of conviction, that counts for purposes of the time periods enumerated in section 321.555(1).

Case No. 19-0083:  Richard Cortez v. State of Iowa

Filed May 13, 2020

View Opinion No. 19-0083

            Appeal from the Iowa District Court for Floyd County, Colleen Weiland, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.  Opinion by Vaitheswaran, P.J.  (9 pages)

            Richard Cortez appeals the denial of his application for postconviction relief, contending that his Brady rights were violated, the State committed prosecutorial misconduct, and his counsel was ineffective for various reasons.  OPINION HOLDS: We affirm.

Case No. 19-0101:  Santos Rosales Martinez v. State of Iowa

Filed May 13, 2020

View Opinion No. 19-0101

            Appeal from the Iowa District Court for Buena Vista County, Nancy L. Whittenburg, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Vaitheswaran, P.J.  Dissent by May, J. (13 pages)

            Santos Rosales Martinez appeals the district court’s summary dismissal of his third application for postconviction relief (PCR) following his 2002 second-degree sexual abuse conviction, contending (1) his PCR counsel was ineffective in “not communicating with [him] at any time,” (2) the court “erred in hearing the State’s pre-answer motion to dismiss prior to [his] being notified that an attorney had been appointed to represent him,” and (3) the failure of the department of corrections to admit [him] to the sex offender treatment program was “a loss of the accrual of earned time” and “a substantial deprivation of his liberty interest.”  OPINION HOLDS: We find the first issue dispositive, and we reverse and remand the dismissal of the postconviction-relief application.  DISSENT ASSERTS: I respectfully dissent.  The record and briefing are not sufficiently developed for us to decide Rosales Martinez’s ineffective-assistance claims.  We should affirm and preserve his claims for development in a future postconviction-relief proceeding.

Case No. 19-0138:  State of Iowa v. Greg A. Schindler

Filed May 13, 2020

View Opinion No. 19-0138

            Appeal from the Iowa District Court for Washington County, Joel D. Yates, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J. (7 pages)

            Greg Schindler appeals his convictions for ongoing criminal activity and first-degree theft.  He claims he received ineffective assistance of counsel.  OPINION HOLDS: Schindler’s counsel was not ineffective.  So we affirm.

Case No. 19-0161:  State of Iowa v. Larry D. Bell Sr.

Filed May 13, 2020

View Opinion No. 19-0161

            Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Schumacher, J.  (12 pages)

            A defendant appeals from convictions on two counts of sex-offender-registry violations.  OPINION HOLDS: We reject the defendant’s arguments under the Iowa Rules of Criminal Procedure as unpreserved.  With one narrow exception, we find the record insufficient to evaluate the ineffective-assistance-of-counsel claims raised in Bell’s pro se brief and the brief of his appellate counsel.  We preserve these claims for possible future postconviction proceedings, and we reject any claim that the judge in this case should have recused himself or that the trial court abused its discretion in denying a motion to withdraw.

Case No. 19-0208:  State of Iowa v. Lloyd L. Oliver

Filed May 13, 2020

View Opinion No. 19-0208

            Appeal from the Iowa District Court for Scott County, John D. Telleen, Judge.  CONVICTIONS AFFIRMED, SENTENCE VACATED IN PART, AND REMANDED.  Considered by Doyle, P.J., Ahlers, J., and Blane, S.J.  Opinion by Blane, S.J.  (14 pages)

            The defendant appeals his convictions for willful injury causing bodily injury and assault with a dangerous weapon.  He contends the trial court erred in overruling his motion for judgment of acquittal challenging the sufficiency of the evidence on specific intent, denying his motions for new trial and in arrest of judgment, and imposing court costs without adequately considering his reasonable ability to pay.  OPINION HOLDS: We affirm the convictions but remand for resentencing as to Oliver’s reasonable ability to pay court costs and correctional fees. 

Case No. 19-0219:  In re the Marriage of Kane

Filed May 13, 2020

View Opinion No. 19-0219

            Appeal from the Iowa District Court for Polk County, Randy V. Hefner, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J.  (9 pages)

            A father contends the “unilateral actions and inactions” of his former wife prompted the district court’s modification of the physical care of their two daughters.  The father seeks to return to their shared-care arrangement and believes the court should hold the mother in contempt.  OPINION HOLDS: Because it is appropriate to modify custody when shared custody provisions incorporated into the decree “have not evolved as envisioned by either of the parties or the court” or when the parents simply “cannot cooperate or communicate in dealing with their children,” we find the mother showed a substantial change in circumstances to justify modification.  Next, because the father did not prove the mother willfully violated the original decree, the mother cannot  be held in contempt.  We affirm. 

Case No. 19-0241:  NCJC, Inc. v. WMG, L.C.

Filed May 13, 2020

View Opinion No. 19-0241

            Appeal from the Iowa District Court for Kossuth County, Carl J. Petersen, Judge.  AFFIRMED IN PART, REVERSED IN PART, and REMANDED WITH INSTRUCTIONS.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (11 pages)

            This case involves a dispute over a farm lease.  The lease includes an attorney-fee clause.  On appeal, WMG, L.C. claims the district court abused its discretion by denying its request for attorney fees but awarding attorney fees in favor of NCJC, Inc.  Opinion holds: (1) For purposes of the lease’s attorney-fee clause, “the prevailing party” was NCJC, not WMG.  So WMG was not entitled to attorney fees.  (2) Iowa Code section 622.25 (2017) did not preclude NCJC from recovering attorney fees.  (3) Under Brockhouse v. State, 449 N.W.2d 380, 381 (Iowa 1989), Iowa Code section 677.10 precluded NCJC from recovering attorney fees incurred for services provided after the time of WMG’s offer to confess.

Case No. 19-0267:  State of Iowa v. Jasmaine R. Warren

Filed May 13, 2020

View Opinion No. 19-0267

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Bower, C.J., and Vaitheswaran, Doyle, Tabor, Mullins, Greer, Schumacher, and Ahlers, JJ.  Opinion by Mullins, J.  Partial Dissents by Vaitheswaran and Tabor, JJ.  (39 pages)

Jasmaine Warren appeals following her convictions of second-offense operating while intoxicated (OWI) and driving with a revoked license.  On appeal, Warren challenges the sufficiency of the evidence supporting the OWI conviction and argues her counsel rendered ineffective assistance in failing to seek suppression of evidence on the basis that she was subjected to an unconstitutional seizure.  OPINION HOLDS: We reverse Warren’s OWI conviction and remand the matter for a new trial on that count.  We find trial counsel was not ineffective as alleged and thus affirm Warren’s conviction of driving while revoked.  PARTIAL DISSENT ASSERTS: I concur in part and dissent in part.  I concur in Part A of the majority opinion.  I dissent from Part B of the majority opinion.  I would decline to reach the ineffective-assistance-of-counsel issue for the reasons stated in footnote 18 of the dissent.  PARTIAL DISSENT ASSERTS: I respectfully dissent on the ineffective-assistance-of-counsel issue.  It is ill-advised to reject Warren’s complaint on direct appeal—and, in doing so, decide a question of first impression in Iowa—without a full airing of the facts bearing on the suppression challenge.  But if compelled to decide the question on the record we do have, I would find Warren proved by a preponderance of the evidence that her counsel breached a duty by not moving to suppress and prejudice resulted.  Warren’s parking violation did not authorize police to seize her in place of issuing a ticket.

Case No. 19-0344:  State of Iowa v. Roger McGhee

Filed May 13, 2020

View Opinion No. 19-0344

            Appeal from the Iowa District Court for Story County, Bethany J. Currie, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Vaitheswaran, P.J. (5 pages)

            Roger McGhee appeals his convictions of third-degree sexual abuse, lascivious acts with a child, and assault with intent to commit sexual abuse.  McGhee (1) challenges the sufficiency of the evidence to support the findings of guilt; (2) contends the district court abused its discretion in admitting certain exhibits that he contends were irrelevant or unfairly prejudicial; and (3) argues the district court considered “unproven offenses when imposing consecutive sentences.”  OPINION HOLDS: We affirm McGhee’s judgment and sentence.

Case No. 19-0373:  Chayse Holdings, LLC v. Toft

Filed May 13, 2020

View Opinion No. 19-0373

            Appeal from the Iowa District Court for Dickinson County, Nancy L. Whittenburg, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  (12 pages)

            A buyer appeals from the district court’s ruling denying specific performance of a real estate contract and awarding the sellers the deposited earnest money, contending the trial court incorrectly interpreted the real estate contract.  OPINION HOLDS: Finding no error, we affirm.

Case No. 19-0423:  State of Iowa v. Lee Arthur Simpson

Filed May 13, 2020

View Opinion No. 19-0423

            Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge.  AFFIRMED.  Considered by Bower, C.J., Doyle, J., and Mahan, S.J.  Opinion by Doyle, J.  (3 pages)

            Lee Simpson appeals his conviction for failure to comply with the sex offender registry, second offense, arguing his counsel was ineffective in allowing him to plead guilty without a factual basis.  OPINION HOLDS: Because the record shows a factual basis for his plea, Simpson has failed to establish his counsel was ineffective. 

Case No. 19-0444:  In the Interest of B.R., Minor Child

Filed May 13, 2020

View Opinion No. 19-0444

            Appeal from the Iowa District Court for Louisa County, Emily Dean, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J.  (7 pages)

            A father appeals the termination of his parental rights to his child under Iowa Code chapter 600A (2018), arguing he did not abandon the child and that termination is not in the child’s best interests.  OPINION HOLDS: We agree with the district court that the mother proved the father abandoned the child and that termination was in the child’s best interests. 

Case No. 19-0534:  State of Iowa v. Mark Ray Sorter

Filed May 13, 2020

View Opinion No. 19-0534

            Appeal from the Iowa District Court for Polk County, Robert J. Blink and Lawrence P. McLellan, Judges.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J.  (6 pages)

            An offender appeals the sentencing orders imposing correction costs arguing the court did not subject the fees to a reasonable-ability-to-pay analysis.  OPINION HOLDS: Because the sheriff did not specify a wish to include the claimed fees as items of restitution, the sentencing court correctly entered the claims as civil judgments under relevant statutes and case law.  We affirm the awards. 

Case No. 19-0573:  State of Iowa v. Larry Lavell Wiggins

Filed May 13, 2020

View Opinion No. 19-0573

            Appeal from the Iowa District Court for Scott County, Mark R. Lawson, Judge.  CONVICTIONS AFFIRMED, SENTENCES AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED FOR RESENTENCING.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J. (15 pages)

            A jury found Larry Wiggins guilty of four drug-related charges.  He alleges the State did not present substantial evidence to support the verdicts.  He also contends his trial attorney was ineffective for not objecting to testimony from an expert witness.  Finally, Wiggins challenges the sentencing order.  OPINION HOLDS: Because the State offered substantial evidence to support Wiggins’s convictions, we decline to disturb the jury’s verdicts.  Next, Wiggins did not prove he received ineffective assistance.  Last, because the district court did not have the total calculation of the restitution available when making its reasonable-ability-to-pay determination, we vacate that part of the sentence and remand for resentencing.  Also, we find no equal-protection violation in the court’s imposition of the law enforcement initiate surcharge.

Case No. 19-0587:  State of Iowa v. Michael Paul Kurnes

Filed May 13, 2020

View Opinion No. 19-0587

        Appeal from the Iowa District Court for Appanoose County, Rose Anne Mefford, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by May, J.  (3 pages)

            Michael Kurnes appeals his sentence after pleading guilty to operating while intoxicated, third offense.  OPINION HOLDS: Kurnes’s claims are not developed for our review.  We preserve them for postconviction-relief proceedings.

Case No. 19-0592:  State of Iowa v. Sean Curtis Sinclair

Filed May 13, 2020

View Opinion No. 19-0592

            Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Schumacher, J.  (7 pages)

            Sean Sinclair appeals his convictions for operating a motor vehicle without the owner’s consent and second-degree theft.  OPINION HOLDS: Sinclair has not shown the district court incorrectly believed he committed these offenses while on probation.  We conclude the district court did not abuse its discretion in denying Sinclair’s request to be placed on probation for the present offenses.  We affirm Sinclair’s convictions and sentences.

Case No. 19-0642:  State of Iowa v. Quintin Demilo Clemons

Filed May 13, 2020

View Opinion No. 19-0642

            Appeal from the Iowa District Court for Scott County, Joel W. Barrows, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Schumacher, J. (12 pages)

            Quintin Clemons appeals his conviction for possession or conspiracy to possess marijuana with intent to deliver.  OPINION HOLDS: We determine Clemons’s conviction may be affirmed on the ground he conspired to possess marijuana with intent to deliver, which he has not challenged on appeal.  We also find there is sufficient evidence to support Clemons’s conviction for possession of marijuana with intent to deliver.  We determine Clemons’s claim of ineffective assistance of counsel should be preserved for possible postconviction-relief proceedings because the record is inadequate to address his claim in this direct appeal.  We conclude the district court adequately expressed the reasons for Clemons’s sentence.  We affirm Clemons’s conviction and sentence.

Case No. 19-0698:  State of Iowa v. Norman Charles Wadsworth

Filed May 13, 2020

View Opinion No. 19-0698

            Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.  AFFIRMED.  Considered by Bower, C.J., and Doyle and Schumacher, JJ.  Opinion by Bower, C.J.  (10 pages)

            Norman Wadsworth appeals his conviction for second-degree murder contending there is insufficient evidence to sustain the conviction, the court abused its discretion in admitting cumulative and prejudicial evidence, defense counsel was ineffective in failing to present a defense of insanity, the court abused its discretion in excluding evidence of Wadsworth’s mental condition, and the court erred in instructing the jury.  OPINION HOLDS: Because we find there is substantial evidence to support the conviction for second-degree murder and we find no abuse of discretion, ineffective assistance, or error of law, we affirm.

Case No. 19-0716:  James Hols v. State of Iowa

Filed May 13, 2020

View Opinion No. 19-0716

            Appeal from the Iowa District Court for Mahaska County, Shawn Showers, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J.  (9 pages)

            James Hols appeals the denial of his application for postconviction relief.  OPINION HOLDS: Finding no merit to any of Hols’s claims of ineffective assistance of counsel, we affirm the district court’s dismissal of his application for postconviction relief.

Case No. 19-0739:  Shcharansky v. Shapiro

Filed May 13, 2020

View Opinion No. 19-0739

            Appeal from the Iowa District Court for Polk County, Scott J. Beattie, Judge.  AFFIRMED ON APPEAL; REVERSED AND REMANDED WITH DIRECTIONS ON CROSS-APPEAL.  Considered by Bower, C.J., Ahlers, J., and Potterfield, S.J.  Blane, S.J., takes no part.  Opinion by Potterfield, S.J.  (31 pages)

            The Shapiro Group and members of the Shcharansky Group owned and operated Continuous Control Solutions, Inc. (CCS) until 2007, when members of the Shcharansky Group purchased the Shapiro Group’s shares of CCS through the execution of a stock purchase agreement—ending the Shapiro Group’s part in the business.  That agreement, and what followed, have been the focus of nearly a decade of litigation.  In this third appeal, we are asked to determine if the district court properly limited the scope of the 2018 trial, based on the ruling of our supreme court in Shcharansky v. Shapiro, 905 N.W.2d 579, 588 (Iowa 2017), so as not to include evidence of the Shapiro Group’s alleged affirmative defenses to Alexander and Tatiana Shcharansky’s contribution claim against them.  Additionally, regarding their cross-claims for breach of contract and reimbursement, the Shapiro Group maintains the district court should have granted their motions for directed verdict, judgment notwithstanding verdict, or new trial.  Alexander and Tatiana Shcharansky cross-appeal, arguing the district court erred in its determination they were not entitled to prejudgment interest for their contribution claim; they otherwise ask that we affirm.  OPINION HOLDS: We affirm the district court ruling as to all the issues raised by the Shapiro Group on appeal.  However, on cross-appeal, we reverse the district court’s ruling as to Alexander and Tatiana Shcharansky’s request for interest from the day they filed their contribution claim.  We remand for the limited purpose of correction of the judgment order.

Case No. 19-0780:  State of Iowa v. Tara Lane

Filed May 13, 2020

View Opinion No. 19-0780

            Appeal from the Iowa District Court for Scott County, Mary E. Howes and Stuart P. Werling, Judges.  AFFIRMED.  Considered by Mullins, P.J., Ahlers, J., and Scott, S.J.  Opinion by Mullins, P.J.  (5 pages)

            Tara Lane appeals her conviction, following a guilty plea, of assault with intent to commit sexual abuse not resulting in injury and the sentence imposed.  She argues (1) her counsel was ineffective in allowing her to plead guilty and waive her opportunity to file a motion in arrest of judgment absent a factual basis and (2) the court improperly failed to state its reasons for imposing a prison sentence as opposed to a suspended sentence and probation or a deferred judgment.  OPINION HOLDS: We conclude (1) Lane’s plea was supported by a factual basis and counsel was therefore not ineffective and (2) the court’s terse and succinct statement regarding its sentencing decision was sufficient to show its reasons for its discretionary decision are viable.  We affirm Lane’s conviction and the sentence imposed.

Case No. 19-0812:  Rodney J. Gray v. State of Iowa

Filed May 13, 2020

View Opinion No. 19-0812

            Appeal from the Iowa District Court for Jones County, Patrick R. Grady, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J.  (5 pages)

            Rodney Gray appeals from the summary denial of his application for postconviction relief, asserting his sentence is illegal.  OPINION HOLDS: Because Gray was properly sentenced for five separate convictions of sexual abuse in the second degree, his sentence was not illegal for violating double jeopardy.  Therefore, we affirm the dismissal of Gray’s application.

Case No. 19-0814:  In the Matter of the Estate of Fae Doreen Black, Deceased.

Filed May 13, 2020

View Opinion No. 19-0814

            Appeal from the Iowa District Court for Van Buren County, Shawn R. Showers, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J.  (9 pages)

            Steven and Michael Johnston seek specific performance of an “option to purchase” in a 1962 “Easement and Agreement.”  They claim the terms of that agreement allow them to purchase Van Buren County land owned by the Black Estate around a shared lake.  In an earlier boundary-dispute case, the Johnstons elected an unsuccessful path to the same result they seek in this appeal.  OPINION HOLDS: We conclude the doctrine of claim preclusion bars the Johnstons’ suit in this case.  We briefly address the statute of limitations claim to note that the Johnstons’ failure to cite any supporting authority related to the application of Iowa Code section 633.414 to these facts prohibits our review of that issue.  And they concede that their claim in probate, if treated as such, would be barred under Iowa Code section 633.410.

Case No. 19-0849:  State of Iowa v. Thomas C. Casper

Filed May 13, 2020

View Opinion No. 19-0849

            Appeal from the Iowa District Court for Cerro Gordo County, Adam Sauer, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Vaitheswaran, P.J. (5 pages)

            Thomas C. Casper appeals his conviction for operating a motor vehicle while intoxicated, first offense, contending that his breathalyzer test result should have been suppressed because he was not advised of his right to an independent chemical test.  OPINION HOLDS: We affirm.

Case No. 19-0876:  State of Iowa v. Brock Anthony Wing

Filed May 13, 2020

View Opinion No. 19-0876

            Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan, Judge.  AFFIRMED.  Considered Bower, C.J., and Doyle and Schumacher, JJ.  Opinion by Doyle, J.  (3 pages)

            Brock Wing appeals his convictions after pleading guilty, alleging his trial counsel was ineffective in failing to move in arrest of judgment because his first attorney misadvised him regarding the possibility of a deferred judgment.  OPINION HOLDS: Because the record is insufficient to allow us to resolve Wing’s claim on direct appeal, we preserve the issue for postconviction relief to allow full development of the record. 

Case No. 19-0913:  State of Iowa v. Willie Guyton, Jr.

Filed May 13, 2020

View Opinion No. 19-0913

            Appeal from the Iowa District Court for Black Hawk County, Patrice Eichman and William Patrick Wegman, Judges.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Mullins, J.  (5 pages)

            Willie Guyton Jr. appeals the denial of his motion to withdraw pleas of guilt.  OPINION HOLDS: We affirm the denial of Guyton’s motion.

Case No. 19-0937:  State of Iowa v. Melissa Kay West

Filed May 13, 2020

View Opinion No. 19-0937

            Appeal from the Iowa District Court for Warren County, Brendan Greiner, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and May and Greer, JJ.  Opinion by May, J.  (3 pages)

            Melissa West appeals the revocation of her deferred judgment and imposition of a jail sentence following multiple probation violations.  OPINION HOLDS: The district court did not abuse its discretion in revoking West’s deferred judgment and imposing a jail sentence.

Case No. 19-0952:  State of Iowa v. Adam Crary

Filed May 13, 2020

View Opinion No. 19-0952

            Appeal from the Iowa District Court for Allamakee County, Alan Heavens, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Schumacher, J.  (9 pages)

            A defendant appeals from plea proceedings in which he was convicted of sexual abuse in the third degree.  He alleges he received ineffective assistance of counsel.  OPINION HOLDS: Of the three claims of ineffective assistance of counsel raised on appeal, two should be preserved for possible future postconviction-relief proceedings, where the record can be further developed.  However, we reject on direct appeal the defendant’s claim that his counsel was ineffective for failing to object to a lack of a factual basis to support the plea, as such an objection would have been meritless given the content of the minutes of testimony and the defendant’s admissions during the plea colloquy.  The conviction is affirmed.

Case No. 19-1004:  State of Iowa v. Shawn Eastman-Adams

Filed May 13, 2020

View Opinion No. 19-1004

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

            Shawn Eastman-Adams challenges the district court’s decision to send her to prison after she was convicted of theft in the second degree as a habitual offender.  OPINION HOLDS: We find no abuse of the district court’s discretion in imposing a prison sentence rather than a suspended sentence.

Case No. 19-1029:  State of Iowa v. Monique Antoinette Robinson

Filed May 13, 2020

View Opinion No. 19-1029

            Appeal from the Iowa District Court for Story County, James B. Malloy and Steven P. Van Marel, District Associate Judges.  AFFIRMED.  Considered Bower, C.J., and Doyle and Schumacher, JJ.  Opinion by Doyle, J.  (4 pages)

            Monique Robinson appeals the judgment and sentence entered for trespass causing injury and disorderly conduct after her probation was revoked.  OPINION HOLDS: Robinson’s request of an extension of the term of her probation waived any challenge to the court’s authority to do so, and her counsel was not ineffective in failing to challenge the validity of the extension at the probation revocation hearing.  Because the proper forum for challenging the validity of the extension was by certiorari or postconviction proceedings, we do not address the issue on appeal from the probation revocation. 

Case No. 19-1030:  State of Iowa v. Gregory M. Hintze

Filed May 13, 2020

View Opinion No. 19-1030

            Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Tabor, J., takes no part.  Opinion by Mullins, J.  (4 pages)

            Gregory Hintze appeals the sentence imposed upon his conviction of extortion, contending the sentencing court considered inappropriate information in imposing sentence.  OPINION HOLDS: Absent an affirmative showing the sentencing court relied on inappropriate evidence, we find no abuse of discretion and affirm. 

Case No. 19-1085:  KAS Investment Co., Inc., d/b/a Swanson Glass, Inc. and SFM Select Insurance Company v. Joseph Buehlmann

Filed May 13, 2020

View Opinion No. 19-1085

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED.  Considered by Bower, C.J., and Doyle and Schumacher, JJ.  Opinion by Schumacher, J.  (3 pages)

            KAS Investment Co., Inc., doing business as Swanson Glass, Inc., and its insurance carrier appeal the district court decision affirming the workers’ compensation commissioner’s award of benefits to Joseph Buehlmann.  OPINION HOLDS: We have carefully considered the decision of the commissioner and the district court’s ruling on judicial review of that decision.  We determine we would reach the same result as the district court in this case.  We affirm by memorandum opinion pursuant to Iowa Court Rule 21.26(1)(a), (c), (d), and (e).

Case No. 19-1120:  In re the Marriage of McInnis

Filed May 13, 2020

View Opinion No. 19-1120

            Appeal from the Iowa District Court for Johnson County, Paul D. Miller, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J.  (13 pages)

            Jennifer McInnis appeals the district court’s order to sanction her for defaulting on her obligation to comply with earlier court orders during the divorce proceedings with Brandon McInnis. She also appeals the district court’s denial of her motions to continue and the resulting denial of spousal support.  OPINION HOLDS: Finding no abuse of discretion, we affirm the district court’s refusal to continue the trial and its sanctions for Jennifer’s defaults.  Also, because Jennifer has experience running her own business, has many marketable skills, is under fifty years old, has no serious health issues, has no minor children to support, and received substantial marital assets, we affirm the decree.

Case No. 19-1127:  State of Iowa v. Karl Jermaine Flagg

Filed May 13, 2020

View Opinion No. 19-1127

            Appeal from the Iowa District Court for Story County, Steven P. Van Marel, District Associate Judge.  REVERSED AND REMANDED.  Considered by Bower, C.J., and Doyle and Schumacher, JJ.  Opinion by Bower, C.J. (7 pages)

            In this interlocutory appeal, the State challenges a district court order suppressing evidence of a traffic stop.  OPINION HOLDS: We conclude no due process violation occurred.  We agree with the district court the traffic stop was valid.  We reverse the suppression of evidence and remand for further proceedings.

Case No. 19-1304:  Troy David Thorpe v. Kelsey Joann Hostetler

Filed May 13, 2020

View Opinion No. 19-1304

            Appeal from the Iowa District Court for Greene County, Gina C. Badding, Judge.  AFFIRMED.  Considered by Tabor, P.J., and May and Greer, JJ.  Opinion by Greer, J.  (13 pages)

            Kelsey Hostetler appeals the order modifying the shared-care arrangement regarding the parties’ minor child and argues the court erred by granting physical care to the child’s father, Troy Thorpe.  Kelsey argues Troy proved no changed circumstances impacting their 2017 agreed shared-care arrangement.  In the alternative, she urges if physical care is changed she should be the physical care provider.  Finally Troy requests that Kelsey pay the costs of this appeal, including his expense for the transcript.  OPINION HOLDS: In our de novo review we find that a substantial change in circumstances justified modifying the custodial arrangement.  We affirm the district court decision to award Troy physical care.  We deny the request for payment of costs to Troy.

Case No. 19-1592:  Daniel Jay Tallman v. Valarie Ann Levy

Filed May 13, 2020

View Opinion No. 19-1592

            Appeal from the Iowa District Court for Guthrie County, Richard B. Clogg, Judge.  AFFIRMED AS MODIFIED AND REMANDED.  Considered by Tabor, P.J., and May and Greer, JJ.  Opinion by Greer, J.  (11 pages)

            Daniel Tallman appeals provisions of the court order focused on custody and child support for his and Valarie Levy’s child.  OPINION HOLDS: We conclude that a joint physical care arrangement is in the child’s best interests and reverse the court’s award of physical care to Valarie.  We remand for further proceedings consistent with this opinion.  On remand the district court shall recalculate the appropriate child support obligation.  We decline to award either party appellate attorney fees. 

Case No. 19-1708:  Dylan Michael Padgett v. Amy Presley

Filed May 13, 2020

View Opinion No. 19-1708

            Appeal from the Iowa District Court for Story County, James A. McGlynn, Judge.  AFFIRMED.  Considered by Bower, C.J., and Doyle and Schumacher, JJ.  Opinion by Bower, C.J.  (3 pages)

            Dylan Padgett appeals the decree ordering custody of his child with Amy Presley.  OPINION HOLDS: We have reviewed the entire record de novo and find no reason to disturb the custody decree. 

Case No. 19-1714:  In the Interest of B.M., Minor Child

Filed May 13, 2020

View Opinion No. 19-1714

            Appeal from the Iowa District Court for Buchanan County, Linnea M.N. Nicol, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Ahlers, J.  (7 pages)

            The father consented to the termination of his parental rights pursuant to Iowa Code section 600A.8(5) (2019).  He now appeals.  OPINION HOLDS: Error was not preserved on any of the father’s issues.  Even if we were to disregard error preservation, the father’s consent was voluntarily and intelligently given, the father’s consent was not required to be in writing, and the father had notice of the amended petition and consented to it.

Case No. 19-1833:  In the Interest of A.N., Minor Child

Filed May 13, 2020

View Opinion No. 19-1833

            Appeal from the Iowa District Court for Warren County, Brendan Greiner, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Bower, C.J., and Doyle and Schumacher, JJ.  Opinion by Doyle, J.  (4 pages)

            A mother and a father separately appeal the termination of their parental rights to their child.  OPINION HOLDS: Clear and convincing evidence shows the child could not be safely returned to either parent’s care at the time of the termination.  We affirm the termination of each parent’s rights under Iowa Code section 232.116(1)(h) (2019).  The father failed to preserve error on his reasonable-efforts challenge.

Case No. 19-1840:  In the Interest of A.R. and M.R., Minor Children

Filed May 13, 2020

View Opinion No. 19-1840

            Appeal from the Iowa District Court for Pottawattamie County, Charles D. Fagan, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and May and Greer, JJ.  Opinion by Tabor, P.J.  (8 pages)

            A mother appeals the termination of her parental rights to two children, aged two and five.  She contests the statutory grounds for termination, argues the State failed to make reasonable reunification efforts, and asserts termination would be detrimental due to the closeness of the parent-child relationship.  OPINION HOLDS: The mother’s ongoing substance-abuse and personal issues render her home unsafe for a return of the children’s custody, so the State proved the statutory ground for termination by clear and convincing evidence.  The mother failed to preserve error on her reasonable-efforts challenge.  She also failed to show the termination would be detrimental to the children.  Accordingly, we affirm the termination of her parental rights. 

Case No. 20-0108:  In the Interest of L.P., A.P., and Z.W., Minor Children

Filed May 13, 2020

View Opinion No. 20-0108

            Appeal from the Iowa District Court for Wapello County, William Owens, Associate Juvenile Judge.  AFFIRMEDConsidered by Bower, C.J., Schumacher, J., and Scott, S.J.  Opinion by Scott, S.J.  (5 pages)

            A mother appeals the termination of her parental rights to her three children.  OPINION HOLDS: We affirm the termination of the mother’s parental rights.   

Case No. 20-0219:  In the Interest of R.R., Minor Child

Filed May 13, 2020

View Opinion No. 20-0219

            Appeal from the Iowa District Court for Appanoose County, William Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Greer, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (10 pages)

            A father appeals the termination of his parental rights to his child, contending (1) the State failed to prove the grounds for termination cited by the juvenile court and (2) termination was not in the child’s best interests.  OPINION HOLDS: We affirm the decision of the juvenile court to terminate the father’s parental rights. 

Case No. 20-0293:  In the Interest of G.C., Minor Child

Filed May 13, 2020

View Opinion No. 20-0293

            Appeal from the Iowa District Court for Warren County, Kevin Parker, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Mullins, J.  (3 pages)

            Parents separately appeal a permanency order transferring guardianship and custody of their child, born in 2004, to a suitable other pursuant to Iowa Code section 232.104(2)(d)(1) (2018).  Both parents argue the court should have instead directed the State to institute termination proceedings under section 232.104(2)(c).  OPINION HOLDS: We agree with the juvenile court that transfer of guardianship to suitable others is the best permanency option, termination would be contrary to the child’s best interests, services were offered to alleviate the need for removal, and the child cannot be returned to the parental home.  We affirm.

Case No. 20-0295:  In the Interest of A.D., Minor Child

Filed May 13, 2020

View Opinion No. 20-0295

            Appeal from the Iowa District Court for Scott County, Christine Dalton, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., May, J., and Blane, S.J.  Opinion by Blane, S.J.  (8 pages)

            A mother appeals the permanency order transferring custody and guardianship of her thirteen-year-old son to his current placement, his step-father, and finding the State made reasonable efforts at reunification.  OPINION HOLDS: The mother has waived her argument the State failed to make reasonable efforts to reunite her with the child.  And we agree with the district court that services have been offered to correct the circumstances leading to removal of A.D., and yet the child cannot return to the mother’s home.  We affirm the juvenile court permanency order. 

Case No. 20-0310:  In the Interest of C.P., Minor Child

Filed May 13, 2020

View Opinion No. 20-0310

            Appeal from the Iowa District Court for Clay County, Andrew Smith, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., Greer, J., and Scott, S.J.  Opinion by Scott, S.J.  (12 pages)

            A mother and father separately appeal the termination of their parental rights to their child, born in 2018.  The mother challenges the sufficiency of the evidence supporting the statutory ground for termination cited by the juvenile court, argues the Iowa Department of Human Services failed to make reasonable efforts at reunification, and requests a six-month extension to work toward reunification.  The father challenges the sufficiency of the evidence supporting termination, argues termination is contrary to the child’s best interests, questions the State’s reasonable efforts at reunification, maintains a guardianship should have been established in a relative in lieu of termination, asks for the application of statutory exceptions to termination, and requests additional time to work toward reunification.  OPINION HOLDS: We affirm the termination of both parents’ parental rights.

Case No. 20-0333:  In the Interest of L.K., Minor Child

Filed May 13, 2020

View Opinion No. 20-0333

            Appeal from the Iowa District Court for Linn County, Cynthia S. Finley, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., Schumacher, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (5 pages)

            A father appeals the juvenile court order terminating his parental rights.  OPINION HOLDS: We find there is sufficient evidence in the record to support termination of the father’s parental rights, termination is in the child’s best interests, and extending this case for an additional six months is not warranted.  We affirm the decision of the juvenile court.

Case No. 20-0358:  In the Interest of A.O., L.S., C.S., C.S., A.S., A.C., and A.S., Minor Children

Filed May 13, 2020

View Opinion No. 20-0358

            Appeal from the Iowa District Court for Worth County, Adam D. Sauer, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Greer and Schumacher, JJ.  Opinion by Schumacher, J.  (8 pages)

            A mother and father appeal the juvenile court decision finding their children were in need of assistance (CINA).  OPINION HOLDS: We conclude the juvenile court properly determined the children should be adjudicated CINA.  The parents were not adequately addressing the children’s medical, dental, and educational needs.  The children could not be returned to the parents’ care at the time of the dispositional hearing.  We concur in the court’s placement of the children.  We affirm the decision of the juvenile court.

Case No. 18-1243:  State of Iowa v. Kalandis R. McNeil

Filed Apr 29, 2020

View Opinion No. 18-1243

            Appeal from the Iowa District Court for Scott County, John Telleen, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (8 pages)

            Kalandis McNeil appeals his conviction for failure to comply with sex-offender registry requirements with a habitual-offender enhancement.  OPINION HOLDS: The district court’s denial of McNeil’s motion for new trial was not an abuse of discretion.

Case No. 18-1465:  Brian Koncel v. State of Iowa

Filed Apr 29, 2020

View Opinion No. 18-1465

            Appeal from the Iowa District Court for Jackson County, Kevin McKeever, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (13 pages)

            Brian Koncel appeals the district court’s denial of his application for postconviction relief following his 1997 conviction for first-degree kidnapping.  He challenges the court’s denial of several ineffective-assistance-of-counsel claims and raises additional claims.  OPINION HOLDS: We affirm the denial of Koncel’s postconviction-relief application.

Case No. 18-1467:  Thomas Deshawn Holmes v. State of Iowa

Filed Apr 29, 2020

View Opinion No. 18-1467

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

            Thomas Holmes appeals from the dismissal of his application for postconviction relief.  He asserts the district court convicted and sentenced him under nonexistent sections of the Iowa Code.  OPINION HOLDS: Holmes raises the very same issues raised in his prior proceedings.  His claims fail for the same reasons they failed last time, in addition to now failing on the principle of res judicata.  We affirm the district court without further opinion.

Case No. 18-1633:  Gregory Pollow and Cindee Pollow v. Estate of Zelda Studebaker

Filed Apr 29, 2020

View Opinion No. 18-1633

            Appeal from the Iowa District Court for Buchanan County, Richard D. Stochl, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J.  (6 pages)

            Gregory Pollow appeals the district court denial of his motion for new trial.  Pollow argues he should have been granted a new trial based on allegedly inappropriate comments from opposing counsel during closing arguments.  OPINION HOLDS: Defense counsel’s comments regarding stipulations entered into evidence by the claimant did not improperly instruct the jury.  No attorney misconduct occurred that would give rise to new trial.  We affirm the district court’s denial of the motion for new trial.

Case No. 18-1841:  Zen Restaurants LLC v. Kirkwood Commons, LLC

Filed Apr 29, 2020

View Opinion No. 18-1841

            Appeal from the Iowa District Court for Polk County, Sarah E. Crane, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            Kirkwood Commons, LLC appeals the entry of declaratory judgment in its favor, contending that it is entitled to more money per month for common area and maintenance fees because an addendum to the lease agreement was invalid and unenforceable.  OPINION HOLDS: Because substantial evidence supports the court’s determination that the addendum was agreed to by both parties, we affirm. 

Case No. 18-1848:  Daniel Lee Jensen v. Karla Ruth Baccam

Filed Apr 29, 2020

View Opinion No. 18-1848

            Appeal from the Iowa District Court for Calhoun County, William C. Ostlund, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (10 pages)

            Daniel Jensen appeals the denial of his application for contempt.  OPINION HOLDS: Finding Daniel either failed to preserve error or raised arguments having no merit, we affirm.

Case No. 18-2093:  Michael Lothar Mayton v. State of Iowa

Filed Apr 29, 2020

View Opinion No. 18-2093

            Appeal from the Iowa District Court for Dubuque County, Michael J. Shubatt, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J.  (4 pages)

            Michael Mayton appeals the district court order denying his application for postconviction relief, arguing his trial counsel was ineffective by not giving an opening statement.  OPINION HOLDS: We conclude Mayton has failed to prove his trial counsel was ineffective and affirm the district court order.

Case No. 18-2162:  State of Iowa v. Gregory John Schuldt

Filed Apr 29, 2020

View Opinion No. 18-2162

            Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J.  (7 pages)

            A jury convicted Gregory Schuldt of intimidation with a gun and going armed with intent.  He appeals those verdicts, alleging his trial counsel failed to challenge the State’s proof that he acted with the specific intent necessary to commit those offenses.  OPINION HOLDS: Because strong evidence bolstered the inference that Schuldt had the specific intent to use the pistol without justification when he fired seven rounds against the bartender or other customers, defense counsel’s motion for acquittal would have been meritless.  Schuldt’s counsel had no duty to make a meritless motion.

Case No. 18-2176:  State of Iowa v. Charae Monique Miller

Filed Apr 29, 2020

View Opinion No. 18-2176

            Appeal from the Iowa District Court for Polk County, Jeanie Vaudt, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J.  (5 pages)

            Charae Miller appeals her convictions of two counts of forgery, one count of third-degree theft, and one count of identity theft.  She argues no direct evidence supports that she possessed or uttered.  OPINION HOLDS: Our review of the record shows the evidence was sufficient to convince a reasonable trier of fact beyond a reasonable doubt of Miller’s guilt.  As such, we affirm Miller’s criminal convictions. 

Case No. 18-2189:  Michael Earl Hilson v. State of Iowa

Filed Apr 29, 2020

View Opinion No. 18-2189

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Ahlers, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (8 pages)

            Michael Hilson appeals the district court’s dismissal of his application for postconviction relief, challenging the district court’s summary dismissal of his claim through a merits analysis of a newly discovered evidence claim rather than applying a ground-of-fact test to determine whether it was time barred.  OPINION HOLDS: We affirm the denial of Hilson’s application for postconviction relief.

Case No. 19-0174:  State of Iowa v. Marion Steven Goodon

Filed Apr 29, 2020

View Opinion No. 19-0174

            Appeal from the Iowa District Court for Monona County, Jeffrey A. Neary, Judge.  AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J. (12 pages)

            Marion Steven Goodon appeals his convictions for assault, first-degree burglary, stalking, domestic-abuse assault causing bodily injury, and going armed with intent.  He contends trial counsel was ineffective in failing to challenge inconsistent verdicts, the trial court erred in admitting hearsay testimony, and the court abused its discretion in assessing court costs and correctional fees.  OPINION HOLDS: Because the verdicts were not inconsistent and the court did not err in its evidentiary ruling, we affirm the convictions.  However, we vacate the restitution portion of the sentencing order and remand to the district court.

Case No. 19-0207:  Unkrich Ag, Inc., Monty Unkrich, and Stacy Unkrich v. Farm Bureau Property & Casualty Insurance Company

Filed Apr 29, 2020

View Opinion No. 19-0207

            Appeal from the Iowa District Court for Jefferson County, Crystal S. Cronk, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  (15 pages)

            Farm Bureau Property & Casualty Insurance Company appeals a district court judgment in favor of Unkrich Ag, Inc., Monty Unkrich, and Stacy Unkrich (collectively “the Unkriches”).  OPINION HOLDS: Substantial evidence supports a finding that equipment was damaged by a power surge at the Unkriches’ property but does not support a finding the electrical systems were damaged by a power surge.  We also modify the court’s award for loss-of-income damages to policy limits.  We affirm in part, reverse in part, and remand for a recalculation of damages.

Case No. 19-0214:  State of Iowa v. Gregory Michael Davis

Filed Apr 29, 2020

View Opinion No. 19-0214

            Appeal from the Iowa District Court for Linn County, Sean W. McPartland, Judge.  AFFIRMED.  Heard by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J.  Dissent by Ahlers, J.  (26 pages)

            Gregory Davis appeals his conviction for first-degree murder, raising challenges to the jury instructions and the competence of his trial counsel.  Davis challenges (1) the marshaling instruction for first-degree murder; (2) the intoxication instruction; (3) the reference to diminished capacity in the marshaling instructions for general-intent lesser-included offenses; (4) the effectiveness of his counsel in questioning one of the experts on Davis’s intent; and (5) the cumulative effect of these alleged errors.  OPINION HOLDS: We find Davis failed to preserve error on claims (1) and (3), but even so, these claims fail.  We find no error in the district court’s giving of an intoxication instruction.  We preserve claim (4) for a possible postconviction-relief application.  Given our rulings on claims (1)–(4), we find claim (5) without merit.  We affirm Davis’s conviction.  DISSENT ASSERTS: Failing to include a cross-reference to defenses in the marshaling instruction for the first-degree murder charge while including the cross-reference in the marshaling instructions for all lesser-included charges created confusing and misleading instructions.  Trial counsel’s failure to object was deficient performance that resulted in prejudice to Davis and constituted ineffective assistance of counsel.  Davis should receive a new trial as a result. 

Case No. 19-0226:  State of Iowa v. Christina Bennett

Filed Apr 29, 2020

View Opinion No. 19-0226

            Appeal from the Iowa District Court for Polk County, Heather L. Lauber and Lawrence P. McLellan, Judges.  CONVICTIONS AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING.  Considered by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.  Opinion by Vaitheswaran, P.J. (9 pages)

            Christina Bennett appeals following her guilty plea to lottery ticket fraud, failure to appear, and driving without the owner’s consent, arguing (1) the prosecutor breached the plea agreement when he recommended incarceration rather than probation, and her attorney was ineffective in failing to challenge the breach; (2) the district court erred in ordering her to reimburse the sheriff for jail room-and-board expenses without determining her reasonable ability to pay those expenses; and (3) if the reimbursement order was a civil judgment rather than a criminal restitution order, the statute authorizing payment of the expenses without affording her the opportunity to be heard violated due process.  OPINION HOLDS: We affirm Bennett’s convictions.  We vacate her sentences and remand for resentencing before a different judge.

Case No. 19-0252:  State of Iowa v. Keith Alexander Mayes

Filed Apr 29, 2020

View Opinion No. 19-0252

            Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J.  (13 pages)

            Keith Mayes appeals from his conviction for sexual abuse in the second degree.  Mayes maintains the district court abused its discretion in determining the rape-shield law prevented the introduction of evidence the complaining witness had previously been shown a pornographic video, challenges the sufficiency of the evidence to support his conviction, and argues the court abused its discretion in granting the State’s two requests for continuances.  OPINION HOLDS: The district court did not abuse its discretion in excluding evidence based on the rape-shield law or in granting the State’s two requests for continuances.  Additionally, because substantial evidence supports Mayes’s conviction for sexual abuse in the second degree, we affirm. 

Case No. 19-0269:  Vincent Ndikumana v. State of Iowa

Filed Apr 29, 2020

View Opinion No. 19-0269

            Appeal from the Iowa District Court for Linn County, Mitchell E. Turner, Judge.  AFFIRMED.  Considered by Mullins, P.J., Schumacher, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (4 pages)

            Vincent Ndikumana appeals the district court decision dismissing his applications for postconviction relief.  OPINION HOLDS: We find further development of the record was not necessary before the court determined whether the applications should be dismissed.  We conclude the district court did not err by dismissing Ndikumana’s applications for postconviction relief because they were not filed within the three-year time period prescribed by Iowa Code section 822.3 (2018).  We affirm the decision of the district court.

Case No. 19-0305:  Brian McConnelee v. State of Iowa

Filed Apr 29, 2020

View Opinion No. 19-0305

            Appeal from the Iowa District Court for Buchanan County, Andrea J. Dryer, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J.  (6 pages)

            Brian McConnelee challenges his prison sentence for seven crimes, including five counts of drug possession and two counts of operating while intoxicated, following our earlier remand.  On remand, the district court imposed a sentence of incarceration not to exceed seven years.  McConnelee appeals that new sentence, alleging his attorney should have asked for an updated presentence investigation report.  OPINION HOLDS: Because the record is not adequate to determine whether counsel made a tactical decision or if the absence of an updated report was prejudicial, we affirm the sentencing order but preserve the ineffective-assistance claim for potential postconviction-relief proceedings.

Case No. 19-0322:  Eric Mel Thompson v. State of Iowa

Filed Apr 29, 2020

View Opinion No. 19-0322

            Appeal from the Iowa District Court for Pottawattamie County, Kathleen A. Kilnoski, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J.  (8 pages)

            Eric Thompson appeals the dismissal of his third postconviction-relief (PCR) application.  On appeal, Thompson argues that the holding of Allison v. State, 914 N.W2d 866, 891 (Iowa 2018), should be expanded to find the three-year statute of limitations for filing a PCR is unconstitutional.  Even if constitutional, Thompson claims Allison affords him the guarantee of competent counsel and both his trial and appellate counsels’ ineffective assistance warranted an exception to the three-year time bar.  OPINION HOLDS: We conclude the three-year time bar is constitutional and the exception in Allison does not apply because Thompson did not file his PCR action “promptly.”  We affirm the dismissal of Thompson’s third PCR.

Case No. 19-0325:  Dustin William Snowbird v. State of Iowa

Filed Apr 29, 2020

View Opinion No. 19-0325

            Appeal from the Iowa District Court for Cerro Gordo County, Chris Foy, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J.  (4 pages)

            Dustin Snowbird appeals the denial of his application for postconviction relief (PCR).  He claims the PCR court should have found his trial and appellate counsel were ineffective for not challenging the felony-plea-taking court’s failure to mention his right to confront and cross examine the State’s witnesses.  OPINION HOLDS: Because we find no credibility in Snowbird’s claim that had his attorneys challenged the plea-taking court’s omission of information on confrontation (either at the plea stage or on appeal) he would have insisted on going to trial and risked a sentence of thirty-one years in prison instead of eleven.

Case No. 19-0375:  William Edward Blakeman, III v. State of Iowa

Filed Apr 29, 2020

View Opinion No. 19-0375

            Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi Wittig, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by May, J.  Dissent by Vaitheswaran, P.J.  (6 pages)

            William Blakeman appeals from the summary dismissal of his application for postconviction relief (PCR).  OPINION HOLDS: Blakeman filed his PCR application after expiration of the three-year statute of limitations.  And he did not present a ground of fact or law that could not have been presented within three years after his conviction became final.  Blakeman also failed to preserve error on his equitable-tolling claim.  DISSENT ASSERTS: I believe the district court erred in dismissed the postconviction-relief application sua sponte without notice to Blakeman, despite the fact that an order filed less than three weeks earlier afforded his attorney forty-five days to file a brief and granted Blakeman the right to a hearing in the event a motion for summary judgment was filed.  I would reverse and remand for further proceedings.

Case No. 19-0490:  State of Iowa v. Anthony John McGilvrey

Filed Apr 29, 2020

View Opinion No. 19-0490

            Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan, Judge.  CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Schumacher, J.  (11 pages)

            A man appeals convictions arising from his role as the driver in a hit-and-run.  OPINION HOLDS: We find the record insufficient to review the defendant’s ineffective-assistance-of-counsel claim, and we therefore reserve the claim for possible future postconviction relief proceedings.  However, we vacate the restitution portion of the sentences and remand for entry of a new restitution order in accordance with recent Iowa Supreme Court precedent. 

Case No. 19-0506:  Roger Allen Rouse v. State of Iowa

Filed Apr 29, 2020

View Opinion No. 19-0506

            Appeal from the Iowa District Court for Clay County, David A. Lester, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Vaitheswaran, P.J.  (8 pages)

            Roger Allen Rouse appeals the denial of his application for postconviction relief, arguing his plea attorney was ineffective in (A) “allowing [him] to plead guilty without a valid waiver of his right to plead in open court” and (B) “allowing [him] to plead guilty since his guilty plea was involuntary.”  OPINION HOLDS: Because he failed to establish prejudice on the first claim and failed to establish a breach of essential duty on the second, we affirm the denial of his postconviction-relief application.

Case No. 19-0518:  State of Iowa v. Michael Sandblom

Filed Apr 29, 2020

View Opinion No. 19-0518

            Appeal from the Iowa District Court for Polk County, Jeffrey Farrell, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J.  (9 pages)

            Michael Sandblom appeals his conviction of possession of a controlled substance.  He challenges the sufficiency of the evidence supporting the crime and argues improper testimony was admitted at trial.  OPINION HOLDS: Finding no abuse of discretion in the complained-of evidentiary ruling and concluding Sandblom’s conviction is supported by substantial evidence, we affirm.

Case No. 19-0565:  Ernie L. Anderson and Anthony Anderson Co-Administrators and Personal Representatives of the Estate of Charlotte L. Anderson, Deceased v. Lindsay M. Arndt

Filed Apr 29, 2020

View Opinion No. 19-0565

            Appeal from the Iowa District Court for Harrison County, James S. Heckerman, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (5 pages)

            The estate of Charlotte Anderson appeals the order granting summary judgment on a wrongful death claim in favor of Lindsay Arndt.  OPINION HOLDS: Because the evidence shows Lindsay Arndt had transferred her right or interest to the vehicle that struck and killed Charlotte Anderson, she cannot be held vicariously liable for the negligence acts of its driver as a matter of law.

Case No. 19-0634:  A.N. v. J.G.

Filed Apr 29, 2020

View Opinion No. 19-0634

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J.  (10 pages)

            J.G. challenges the sufficiency of the evidence supporting the district court’s entry of a protective order pursuant to the Sexual Abuse Act (Iowa Code chapter 236A (2019)).  OPINION HOLDS: Finding substantial evidence supports the district court’s finding that J.G. continued with the sex act after consent had been withdrawn, we affirm.

Case No. 19-0670:  In re the Marriage of Stauffer

Filed Apr 29, 2020

View Opinion No. 19-0670

            Appeal from the Iowa District Court for Henry County, Michael J. Schilling, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J.  (11 pages)

            Graig Stauffer appeals the denial of his petition to modify the visitation provisions of the November 2015 dissolution decree.  Graig asks for an alternating week-to-week visitation schedule and a “right of first refusal” when others were caring for his and Lisa Stauffer’s child, C.S.  He faults the district court for not allowing the thirteen-year-old child to testify and for using a substantial-change-in-circumstances standard rather than the less stringent material-change-in-circumstances standard.  OPINION HOLDS: The district court appropriately declined to interview the child.  And like the district court, we find no change in circumstances, material or otherwise, that opens the door to any change of visitation, including the right-of-first-refusal option.  We affirm the district court order.

Case No. 19-0726:  Peter Kelly Long v. State of Iowa

Filed Apr 29, 2020

View Opinion No. 19-0726

            Appeal from the Iowa District Court for Webster County, Kurt L. Wilke, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Schumacher, J.  (13 pages)

            An applicant convicted of a class “A” felony appeals from the dismissal of his third application for postconviction relief.  OPINION HOLDS: The narrow exception outlined in Allison v. State, 914 N.W.2d 866 (Iowa 2018), is inapplicable to Long’s third application for postconviction relief, and therefore the untimeliness of Long’s application is not cured.  Additionally, we reject the conclusory statements in Long’s pro se brief alleging that the judge presiding over his postconviction proceedings was biased, prejudiced, or had knowledge obtained extra judicially.  We affirm the dismissal of the application.

Case No. 19-0774:  State of Iowa v. Keith Irvin Brewington

Filed Apr 29, 2020

View Opinion No. 19-0774

            Appeal from the Iowa District Court for Van Buren County, Joel D. Yates and Shawn R. Showers, Judges.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J.  (4 pages)

            Keith Brewington appeals his conviction for one count of possession of a controlled substance, third or subsequent offense, arguing the State cannot use one of his prior convictions to enhance the current charge to a felony because he did not have, nor did he waive, the assistance of counsel.  OPINION HOLDS: Brewington failed to preserve this claim on appeal and we find the record inadequate to address his ineffectiveness claim.  We preserve his ineffectiveness claim for a possible postconviction-relief action.

Case No. 19-0919:  State of Iowa v. Tawnia Jean Jorgensen

Filed Apr 29, 2020

View Opinion No. 19-0919

            Appeal from the Iowa District Court for Butler County, Peter B. Newell, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by May, J.  (3 pages)

            Tawnia Jorgensen appeals her conviction and sentence of operating while intoxicated following an Alford plea.  She contends her trial counsel was ineffective for multiple reasons.  OPINION HOLDS: Finding Jorgensen’s claims not developed for our review, we preserve her claims.

Case No. 19-0925:  State of Iowa v. Ajamu Manu El-Amin

Filed Apr 29, 2020

View Opinion No. 19-0925

            Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J. (4 pages)

           

            Ajamu El-Amin appeals from his guilty plea to two counts of sexual abuse in the third degree, arguing his counsel was ineffective by allowing him to plead guilty to one of the counts without a sufficient factual basis.  OPINION HOLDS: We conclude the record shows a sufficient factual basis to sustain El-Amin’s guilty plea to the second count of third-degree sexual abuse based on an aiding-and-abetting theory.  We affirm El-Amin’s conviction.

Case No. 19-0977:  State of Iowa v. Frederic Douglass Ware III

Filed Apr 29, 2020

View Opinion No. 19-0977

            Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  (6 pages)

            Frederic Ware III alleges his counsel provided ineffective assistance by allowing him to plead guilty when the plea colloquy did not sufficiently advise him of his constitutional rights and counsel did not file a motion in arrest of judgment.  He also alleges a post-sentencing Brady violation.  OPINION HOLDS: We find Ware did not establish counsel provided ineffective assistance, and his Brady violation claim was not preserved.

Case No. 19-0982:  In re the Marriage of Hensley and Roe

Filed Apr 29, 2020

View Opinion No. 19-0982

            Appeal from the Iowa District Court for Wapello County, Joel D. Yates, Judge.  AFFIRMED AS MODIFIED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J.  (10 pages)

            In this appeal from the dissolution of a common-law marriage of approximately ten years in length, the wife challenges the division of property ordered by the district court.  OPINION HOLDS: After making adjustments to the parties’ net worths, we find it equitable to require the husband to pay the wife an increased property settlement payment of $29,348.69.  Due to the significant difference in the earning abilities of the parties and the wife’s partial success on appeal, we award the wife $2000.00 of appellate attorney fees.

Case No. 19-0994:  Chad Michael Dirks v. Manda Eccles

Filed Apr 29, 2020

View Opinion No. 19-0994

    

            Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L. Larson, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (10 pages)

            We filed our opinion in this case on April 15, 2020, but subsequently granted the father’s petition for rehearing.  Our April 15, 2020 decision is therefore vacated and this decision replaces it.  A mother appeals the district court’s order denying her request for physical care of the parties’ child, as well as a right to be offered additional time for visitation when the father is unavailable.  OPINION HOLDS: Upon our de novo review of the record, we agree with the district court’s determination that shared physical care of the parties’ child was in the child’s best interests.  Similarly, we concur with the district court's declination to include a right-of-first-refusal provision in its order, based on the unique facts of the case.  We decline the parties’ requests for appellate attorney fees.  Any costs on appeal are assessed equally to the parties.

Case No. 19-1013:  State of Iowa v. Fredrick Carter

Filed Apr 29, 2020

View Opinion No. 19-1013

            Appeal from the Iowa District Court for Scott County, John D. Telleen and Mary E. Howes, Judges.  CONVICTION AFFIRMED, SENTENCE VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J. (6 pages)

            Fredrick Carter appeals his conviction and sentence for willful injury causing bodily injury.  OPINION HOLDS: The district court did not abuse its discretion in overruling Carter’s objection to testimony he alleges was outside the scope of the minutes of evidence because the minutes sufficiently alerted him to the source and nature of the allegations against him.  Based on the evidence on the victim’s injury, substantial evidence supports a finding that Carter had the specific intent to cause serious injury.  But because the portion of the sentence imposing a law-enforcement-initiative surcharge is illegal, we vacate it and remand for entry of a corrected sentencing order.

Case No. 19-1037:  In re the Marriage of Drenter

Filed Apr 29, 2020

View Opinion No. 19-1037

            Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.  AFFIRMED. Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Tabor, J., takes no part.  Opinion by May, J.  (3 pages)

            John Drenter appeals from the district court’s entry of appellate attorney fees on remand following an appeal from his dissolution decree.  OPINION HOLDS: The district court did not abuse its discretion in determining the amount of appellate attorney fees.  And the district court was not required to determine whether appellate attorney fees should be awarded on remand because this court already made that determination.

Case No. 19-1038:  Chad Miller v. Scott County Board of Review

Filed Apr 29, 2020

View Opinion No. 19-1038

            Appeal from the Iowa District Court for Scott County, Mark R. Fowler, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J.  (8 pages)

            Chad Miller appeals a district court order affirming the Scott County Board of Review’s classification of his Bettendorf property as residential.  Miller also challenges the valuation.  He contends he primarily uses the property for agricultural purposes and its assessed value should be $700,000 rather than $800,000. OPINION HOLDS: Because Miller failed to show genuine intent to turn a profit on the farming operation, we cannot find he overcame the presumption that the proper classification of his property was residential and not agricultural. Next, because we give weight to the district court’s credibility findings, the county’s witness valuation and comparable properties listings provided substantial evidence to support the district court valuation and classification of the real estate. We affirm.

Case No. 19-1043:  State of Iowa v. Brian Jacob Corey

Filed Apr 29, 2020

View Opinion No. 19-1043

            Appeal from the Iowa District Court for Woodbury County, Tod J. Deck, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by May, J.  (3 pages)

            Brian Corey appeals his sentence on two drug felonies.  OPINION HOLDS: The sentencing court did not abuse its discretion in sentencing Corey to prison rather than probation.

Case No. 19-1068:  State of Iowa v. Chad Michael Vice

Filed Apr 29, 2020

View Opinion No. 19-1068

            Appeal from the Iowa District Court for Lee (North) County, Michael J. Schilling and Mark E. Kruse, Judges.  AFFIRMED.  Considered by Tabor, P.J., and May and Greer, JJ.  Opinion by May, J.  (4 pages)

            Chad Vice appeals from a guilty plea.  OPINION HOLDS: By failing to file a motion in arrest of judgment, Vice waived any claim concerning defects in the plea colloquy.  And the record is not sufficiently developed for us to evaluate Vice’s ineffective-assistance claim.  So we preserve his claim for postconviction-relief proceedings.

Case No. 19-1087:  State of Iowa v. Corey Lamar Morgan Sr.

Filed Apr 29, 2020

View Opinion No. 19-1087

            Appeal from the Iowa District Court for Scott County, Mary E. Howes and Thomas Reidel, Judges.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Schumacher, J.  (6 pages)

            Corey Morgan Sr. appeals his conviction for domestic abuse assault by impeding air flow causing bodily injury.  OPINION HOLDS: Morgan claims he received ineffective assistance because defense counsel did not object to the State’s breach of the plea agreement.  We find the State did not breach the plea agreement and, therefore, defense counsel had no obligation to object.  We affirm Morgan’s conviction.

Case No. 19-1179:  Michael B. Weatherspoon v. State of Iowa

Filed Apr 29, 2020

View Opinion No. 19-1179

            Appeal from the Iowa District Court for Cerro Gordo County, Colleen D. Weiland, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Vaitheswaran, P.J.  (3 pages)

            Michael Weatherspoon appeals from the summary dismissal of his fifth postconviction-relief application, arguing “the district court committed an error of law” in summarily ruling that State v. Plain, 898 N.W.2d 801, 829 (Iowa 2017), did not apply retroactively.  OPINION HOLDS: The postconviction court did not err in summarily dismissing Weatherspoon’s postconviction-relief application.

Case No. 19-1191:  In re the Marriage of Holman

Filed Apr 29, 2020

View Opinion No. 19-1191

            Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Schumacher, J.  (6 pages)

            Jonas Holman appeals the district court decision on his motion for declaratory judgment concerning child support.  OPINION HOLDS: The evidence does not support a finding that the parties entered into a contract that provided Jonas would only be responsible to pay a reduced amount of child support.  Jonas did not preserve error on his claim mortgage payments he made should be offset against the total amount of his child support obligation.  We decline Catherine Holman’s request for appellate attorney fees.  We affirm the decision of the district court.

Case No. 19-1240:  State of Iowa v. Marcia Rechelle Beck

Filed Apr 29, 2020

View Opinion No. 19-1240

            Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge, and Christine Dalton, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Tabor, J., takes no part.  Opinion by Mullins, J.  (5 pages)

            Marcia Beck appeals her conviction of third-degree theft, challenging the sufficiency of the evidence to support her conviction.  Specifically, she argues there is insufficient evidence to show she aided and abetted and the evidence on valuation was insufficient to establish theft in the third degree.  OPINION HOLDS: We find the evidence sufficient to support Beck’s conviction and affirm.

Case No. 19-1330:  State of Iowa v. Robert Zwolanek

Filed Apr 29, 2020

View Opinion No. 19-1330

            Appeal from the Iowa District Court for Muscatine County, Mark D. Cleve and Mark Fowler, Judges.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Ahlers, J.  (8 pages)

            Robert Zwolanek was found guilty of domestic abuse assault with strangulation causing bodily injury and domestic abuse assault while using or displaying a dangerous weapon.  He appeals, claiming the district court erred by not granting his motion for judgment of acquittal and motion in arrest of judgment challenging the sufficiency of the evidence supporting the charges; the district court erred in failing to grant his motion for a new trial, claiming the verdicts were contrary to the weight of the evidence; and his trial counsel was ineffective for failing to ensure the jury was instructed on the definition of family or household members.  OPINION HOLDS: Finding sufficient evidence to support the guilty verdicts and no abuse of discretion in the district court’s denial of Zwolanek’s motion for a new trial, we affirm the convictions.  We do not consider his ineffective-assistance-of-counsel claim on direct appeal.

Case No. 19-1431:  In the Interest of K.C., Minor Child

Filed Apr 29, 2020

View Opinion No. 19-1431

            Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J.  (14 pages)

            The father of the child appeals from the juvenile court’s order terminating his parental rights under Iowa Code chapter 600A (2019).  OPINION HOLDS: On our de novo review, we find the statutory grounds for termination of parental rights of the father have been established by clear and convincing evidence.  In addition, termination of parental rights has been established to be in the child’s best interest by clear and convincing evidence.  We also reject the father’s arguments relating to the record.

Case No. 19-1458:  Dylan Bartz v. Gina M. McDonald

Filed Apr 29, 2020

View Opinion No. 19-1458

            Appeal from the Iowa District Court for Bremer County, Gregg R. Rosenbladt, Judge.  AFFIRMED.  Considered by Tabor, P.J., and May and Greer, JJ.  Opinion by Tabor, P.J.  (13 pages)

            A father appeals from the custody decree granting the mother of the children physical care.  He contends he should have been given physical care.  OPINION HOLDS: On our review of the record, we agree with the district court that the mother edges out the father in terms of her ability to minister to the long-range needs of the two children, especially the older child who has special needs.  So we affirm the district court. 

Case No. 19-1495:  In the Interest of L.C., A.S., and V.F., Minor Children

Filed Apr 29, 2020

View Opinion No. 19-1495

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J.  Special Concurrence by Greer, J.  (13 pages)

            A mother appeals the order terminating her parental rights to her three minor children, A.S., L.C., and V.F.   She argues the evidence submitted was insufficient to terminate her parental rights, termination is not in the children’s best interest, and the permissive factors in Iowa Code section 232.116(3) preclude terminating her parental rights.  She further argues the court appointed special advocate (CASA) had a conflict of interest that deprived her of her right to due process of law under the Fourteenth Amendment to the United States Constitution and article I, section 9 of the Iowa Constitution.  OPINION HOLDS: Sufficient evidence supported termination.  Termination was in the children’s best interest.  The permissive factors did not warrant declining to terminate.  The mother has not shown she was denied due process of law by the CASA’s conflict of interest because she has not shown she was actually prejudiced by the conflict.  SPECIAL CONCURRENCE ASSERTS: I specially concur in the majority decision to terminate the mother’s parental rights.  I believe the mother has the right to raise the issue of the court appointed special advocate’s (CASA) conflict of interest, and any person charged with authority to recommend termination, as the CASA did in her report, cannot avoid a conflict if he or she also wishes to be considered for adoption.  However, because substantial evidence beyond the CASA’s detailed reports existed to support the decision to terminate and the mother failed to show prejudice from the conflict created by the CASA, I agree we should affirm the termination of the mother's rights.  I only write separately to suggest it makes little difference who created the conflict, as the potential harm to the process exists in spite of the distinction. 

Case No. 19-1599:  In the Interest of H.N. and E.N., Minor Children

Filed Apr 29, 2020

View Opinion No. 19-1599

            Appeal from the Iowa District Court for Cerro Gordo County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J.  (7 pages)

            A father appeals from the order terminating his parental rights to twins under Iowa Code chapter 600A (2019).  OPINION HOLDS: After reviewing the record anew, we reach the same conclusions as the juvenile court.  The twins’ mother offered clear and convincing proof the father made, at best, a marginal effort to support or communicate with the twins.  Ample evidence also buoys her position that termination is in their best interests, especially for the twin who has special needs.  We thus affirm the termination order.

Case No. 19-1816:  Tyler Nathan Teggatz v. Brittney Marie Ellingson

Filed Apr 29, 2020

View Opinion No. 19-1816

            Appeal from the Iowa District Court for Hardin County, James C. Ellefson, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Doyle and May, JJ.  Opinion by May, J.  (5 pages)

            Brittney Ellingson appeals the district court’s physical care determination.  Instead, she requests joint physical care.  OPINION HOLDS: We find joint physical care is not in the child’s best interest.  So we affirm the district court’s determination.  We also decline to award Tyler Teggatz appellate attorney fees.

Case No. 19-1876:  In the Interest of S.G., Y.G., L.P., and S.C., Minor Children

Filed Apr 29, 2020

View Opinion No. 19-1876

            Appeal from the Iowa District Court for Monroe County, William Owens, Associate Juvenile Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and May and Schumacher, JJ.  Opinion by May, J.  (5 pages)

            A mother and a father separately appeal the termination of their respective parental rights.  OPINION HOLDS: We conclude termination of the father’s rights is appropriate under Iowa law and consistent with the child’s best interest.  We also conclude termination of the mother’s parental rights is appropriate and consistent with the children’s best interests.

Case No. 19-2002:  In the Interest of A.W., Minor Child

Filed Apr 29, 2020

View Opinion No. 19-2002

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Schumacher, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            A father appeals the termination of his parental rights to a child, born in 2015.  He contends (1) the State failed to prove the grounds for termination cited by the district court; (2) termination was not in the child’s best interests; and (3) the district court should have invoked certain exceptions to termination.  OPINION HOLDS: We affirm the termination of the father’s parental rights to his child.

Case No. 20-0067:  In the Interest of Z.H. and A.A., Minor Children

Filed Apr 29, 2020

View Opinion No. 20-0067

            Appeal from the Iowa District Court for Appanoose County, William Owens, Associate Juvenile Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.  Opinion by Doyle, J.  (6 pages)

            A mother and a father separately appeal the termination of their parental rights.  OPINION HOLDS: The evidence shows termination is in the children’s best interests.  The father has failed to show any of the provisions of section 232.116(3) (2019) apply.  Because there is no basis for finding the need for removal will be eliminated if the mother and father are granted additional time, we decline to delay termination.

Case No. 20-0185:  In the Interest of L.M. and H.M., Minor Children

Filed Apr 29, 2020

View Opinion No. 20-0185

            Appeal from the Iowa District Court for Wapello County, William Owens, Associate Juvenile Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (10 pages)

            A mother and a father separately appeal the termination of their parental rights.  OPINION HOLDS: Under the facts and circumstances of this case, the State proved by clear and convincing evidence the children could not be returned to the mother’s care without a risk of adjudicatory harm at the time of the termination-of-parental-rights hearing.  Additionally, termination of the parents’ parental rights was in the children’s best interests, additional time under section 232.104(2)(b) (2019) is unjustified, and no permissive factor under section 232.116(3) overweighs the children’s need for permanency.  Accordingly, we affirm the juvenile court’s order terminating the parents’ parental rights.

Case No. 20-0210:  In the Interest of S.R., Minor Child

Filed Apr 29, 2020

View Opinion No. 20-0210

            Appeal from the Iowa District Court for Woodbury County, Stephanie Forker Parry, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., Doyle, J., and Scott, S.J.  Opinion by Scott, S.J.  (4 pages)

            A mother appeals the termination of her parental rights to her child, born in 2017, pursuant to Iowa Code section 232.116(1)(d), (e), (h), (i), and (l) (2019).  She challenges the sufficiency of the evidence supporting the statutory grounds for termination and argues the child’s best interests require the establishment of a guardianship in relatives.  OPINION HOLDS: We affirm the termination of the mother’s parental rights.

Case No. 20-0222:  In the Interest of D.F., Minor Child

Filed Apr 29, 2020

View Opinion No. 20-0222

            Appeal from the Iowa District Court for Pottawattamie County, Scott Strait, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., Schumacher, J., and Potterfield, S.J.  Opinion by Potterfield, S.J.  (8 pages)

            The putative father appeals the termination of his parental rights to D.F., born in 2014.  The juvenile court terminated the father’s parental rights pursuant to Iowa Code section 232.116(1)(b) and (e) (2019).  Here, the father argues his rights should not be terminated because the Iowa Department of Human Services did not complete the court-ordered paternity testing on the father and termination is not in the child’s best interests.  OPINION HOLDS: Termination undersection 232.116(1)(b) does not include a reasonable-efforts requirement, and the record shows the father deserted D.F.  Because termination is appropriate under section 232.116(1)(b) and is in D.F.’s best interests, we affirm.

Case No. 20-0278:  In the Interest of H.F., Minor Child

Filed Apr 29, 2020

View Opinion No. 20-0278

            Appeal from the Iowa District Court for Franklin County, Peter B. Newell, District Associate Judge.  AFFIRMED.  Considered by Mullins, P.J., Schumacher, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (5 pages)

            A father appeals the juvenile court order terminating his parental rights.  OPINION HOLDS:  The father does not dispute the statutory basis for termination of his rights.  We find termination of his parental rights is in the child’s best interests.  We also conclude it would not be in the child’s best interests to grant the father an additional six months to work on reunification.  We affirm the juvenile court’s decision terminating the father’s parental rights.

Case No. 20-0376:  In the Interest of K.P. and B.P., Minor Children

Filed Apr 29, 2020

View Opinion No. 20-0376

            Appeal from the Iowa District Court for Union County, John D. Lloyd, Judge.  AFFIRMED.  Considered by Bower, C.J., and Tabor and Ahlers, JJ.  Opinion by Tabor, J.  (7 pages)

            A mother appeals the termination of her parental rights to two children.  She contends the State did not offer clear and convincing evidence of the statutory ground for termination.  She also argues the court should have refrained from terminating her rights because she has a strong bond with the children and relatives are caring for them.  OPINION HOLDS: Because we find little record support for the mother’s arguments, we affirm the termination of parental rights. 

Case No. 20-0381:  In the Interest of G.G., D.G., M.G., P.J., and C.G., Minor Children

Filed Apr 29, 2020

View Opinion No. 20-0381

            Appeal from the Iowa District Court for Clay County, Andrew Smith, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and May, JJ.  Opinion by Bower, C.J.  (3 pages)

            A father appeals the termination of his parental rights.  He does not dispute the grounds for termination exist, but argues the juvenile court erred in not transferring the children to the guardianship of the paternal grandmother.  OPINION HOLDS: We adopt the juvenile court’s finding that a guardianship with the grandmother is not in the children’s best interests.  We find no reason to disturb the court’s ruling terminating the father’s parental rights and therefore affirm.  

Case No. 20-0404:  In the Interest of M.B., Minor Child

Filed Apr 29, 2020

View Opinion No. 20-0404

            Appeal from the Iowa District Court for Linn County, Cynthia S. Finley, District Associate Judge.  AFFIRMED IN PART AND REVERSED IN PART.  Considered by Bower, C.J., and Vaitheswaran and Ahlers, JJ.  Opinion by Vaitheswaran, J.  (5 pages)

            A mother appeals adjudicatory and dispositional orders involving her child.  OPINION HOLDS: We affirm the adjudication of the child under Iowa Code sections 232.2(6)(c)(2), (g), and (n) (2019).  We reverse the adjudication of the child under section 232.2(6)(b).

Case No. 20-0439:  In the Interest of L.S., Minor Child

Filed Apr 29, 2020

View Opinion No. 20-0439

            Appeal from the Iowa District Court for Pottawattamie County, Scott Strait, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J.  (7 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: We affirm the termination of the mother’s parental rights. 

Case No. 20-0470:  In the Interest of X.C., Minor Child

Filed Apr 29, 2020

View Opinion No. 20-0470

            Appeal from the Iowa District Court for Polk County, Lynn Poschner, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., Mullins, J., and Scott, S.J.  Opinion by Scott, S.J.  (4 pages)

            A mother appeals the adjudication of her child as in need of assistance and the subsequent dispositional order.  OPINION HOLDS: We affirm the juvenile court. 

Case No. 18-0695:  Daniel Maurice Claybon v. State of Iowa

Filed Apr 15, 2020

View Opinion No. 18-0695

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

            Daniel Claybon appeals the dismissal of his fifth postconviction-relief (PCR) application.  He asks this court to apply the supreme court’s holding in State v. Lyle, 854 N.W.2d 378, 400–04 (Iowa 2014), to adult offenders.  OPINION HOLDS: Our caselaw has continuously rejected claims that the juvenile sentencing scheme should be extended to adult offenders.  We affirm the PCR court’s dismissal of Claybon’s application.

Case No. 18-0758:  Dustin Elliot Williams v. State of Iowa

Filed Apr 15, 2020

View Opinion No. 18-0758

            Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.  Gamble, S.J., takes no part.  Opinion by Vaitheswaran, P.J.  (9 pages)  

            Williams appeals from the denial of his postconviction-relief application, alleging that (1) “[t]rial counsel was ineffective in failing to investigate potential defenses”; (2) “[t]rial counsel was ineffective in specifically failing to investigate and obtain evidence regarding the State’s sole eyewitness recanting her initial allegations”; and (3) “trial counsel was ineffective in failing to adequately advise [him] regarding his potential strategies and prospects before a jury, which led to [him] consenting to an Alford plea.”  OPINION HOLDS: We affirm the denial of Williams’ postconviction-relief application.

Case No. 18-0763:  State of Iowa v. Earl Travelle Travis

Filed Apr 15, 2020

View Opinion No. 18-0763

            Appeal from the Iowa District Court for Linn County, Mary Chicchelly, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J.  (4 pages)

            Earl Travis challenges the sentence imposed after he pled guilty to one count of possession with intent to deliver a controlled substance (cocaine), a class “C” felony.  He claims the court abused its discretion in imposing his sentence.  OPINION HOLDS: The court sentenced Travis to a sentence within its discretion and provided reasons on the record for the sentence it imposed.  The sentence imposed satisfied the court’s interest in rehabilitation.  Travis failed to show an abuse of discretion.  We affirm.

Case No. 18-1032:  Santonyo Sima Pendleton v. State of Iowa

Filed Apr 15, 2020

View Opinion No. 18-1032

            Appeal from the Iowa District Court for Black Hawk County, Joel A. Dalrymple, Judge.  AFFIRMED.  Considered by Doyle, P.J., May, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (7 pages)

            Santanyo Pendleton appeals the district court’s denial of his application for postconviction relief following his 2015 convictions of sexual abuse in the third degree, raising claims of ineffective assistance of counsel and prosecutorial misconduct.  OPINION HOLDS: Upon our review, we affirm the court’s order denying Pendleton’s application for postconviction relief.

Case No. 18-1253:  Albert Wayne Ware v. State of Iowa

Filed Apr 15, 2020

View Opinion No. 18-1253

            Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (9 pages)

            Albert Ware appeals the district court’s denial of his application for postconviction relief, arguing that the use of unreliable scientific Federal Bureau of Investigation testimony undermined his right to a fair trial and arguing that the exclusion of the testimony would probably have changed the result of the trial. OPINION HOLDS: Because error was not preserved on the fair trial issue and because the result of the trial would probably have been the same due to adequately corroborated accomplice testimony, we affirm.

Case No. 18-1285:  In the Matter of T.M., Alleged to Be Seriously Mentally Impaired.

Filed Apr 15, 2020

View Opinion No. 18-1285

            Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Schumacher, J.  (8 pages)

            T.M. appeals the district court decision finding he was seriously mentally impaired.  OPINION HOLDS: We find T.M. was entitled to a delayed appeal of the magistrate’s decision, giving the district court jurisdiction to consider the appeal.  Consequently, T.M.’s appeal of the district court’s decision is not barred on jurisdictional grounds.  We conclude the district court did not abuse its discretion by proceeding with the hearing when T.M. stated he was ready to proceed.  In the alternative, T.M. has not shown he received ineffective assistance because counsel did not file a motion for a continuance.  T.M. has not cited any legal support for his due process argument and we do not consider it.  We affirm the decision of the district court.

Case No. 18-1434:  Bryan Debarge Shuford v. Iowa District Court for Scott County

Filed Apr 15, 2020

View Opinion No. 18-1434

            Certiorari to the Iowa District Court for Scott County, Nancy S. Tabor, Judge.  WRIT ANNULLED.  Considered by Bower, C.J., and May and Greer, JJ.  Tabor, J., takes no part.  Opinion by Greer, J.  (6 pages)

            Bryan Shuford contends his statutory and constitutional right to counsel was violated by the district court when his motion for illegal sentence and request for counsel was summarily denied by the district court without hearing and without appointing him an attorney.  Fifteen years after his sentencing, he now appeals from the order denying his 2018 motion to correct his sentence.  OPINION HOLDS: Shuford’s motion to correct an illegal sentence was proper.  But we avoid the question of whether Jefferson v. Iowa District Court, 926 N.W.2d 519, 524 (Iowa 2019), applies retroactively as, on appeal, Shuford does not challenge the substance of the district court’s denial of his motion to correct and does not make any semblance of a claim that his sentence is illegal.  We annul the writ.

Case No. 18-1665:  State of Iowa v. Wayne Cordale Bumpus

Filed Apr 15, 2020

View Opinion No. 18-1665

            Appeal from the Iowa District Court for Scott County, Mary E. Howes and Mark D. Cleve, Judges.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  (8 pages)

            Wayne Bumpus appeals his convictions for theft and burglary.  Bumpus claims the district court abused its discretion by denying a motion for continuance to permit a mental-health evaluation prior to the sentencing hearing.  Bumpus also asserts his counsel provided ineffective assistance, and the deficient assistance rendered his guilty plea involuntary.  OPINION HOLDS: Because the court did not abuse its discretion and Bumpus has not established ineffective assistance of counsel, we affirm.

Case No. 18-1667:  Eric Peppers v. Iowa District Court for Johnson County

Filed Apr 15, 2020

View Opinion No. 18-1667

            Certiorari to the Iowa District Court for Johnson County, Chad A. Kepros, Judge.  WRIT SUSTAINED AND REMANDED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Ahlers, J.  (8 pages)

            Eric Peppers petitions for writ of certiorari, claiming he received an illegal sentence.  OPINION HOLDS: Because Peppers was not advised of his right to counsel and did not waive his right to counsel, the district court erred in summarily denying his pro se motion to correct an illegal sentence without adequately addressing the representation issue.  Therefore, we sustain the petition for writ of certiorari and remand for further proceedings.

Case No. 18-1764:  Paul Joseph Boruch v. State of Iowa

Filed Apr 15, 2020

View Opinion No. 18-1764

            Appeal from the Iowa District Court for Dallas County, Brad McCall, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Vaitheswaran, P.J.  (3 pages)

            Paul Boruch appeals from the dismissal of his application for postconviction relief, contending “all prior counsel [were] ineffective for failing to request dismissal of the underlying charges based on the State’s failure to provide preliminary hearing within 10 days.”  OPINION HOLDS: We affirm the dismissal of Boruch’s postconviction-relief application.

Case No. 18-1831:  State of Iowa v. William Walter Evans

Filed Apr 15, 2020

View Opinion No. 18-1831

            Appeal from the Iowa District Court for Washington County, Daniel P. Kitchen, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Doyle and Schumacher, JJ.  Opinion by Doyle, J.  (5 pages)

            William Walter Evans appeals his convictions for simple assault, second-degree harassment, and false imprisonment.  OPINION HOLDS: Evans failed to preserve error on his claim regarding the sufficiency of the evidence supporting his harassment conviction.  Merger is not required because the offenses of harassment and assault fail the impossibility test.  Evans’s trial counsel was not ineffective in failing to challenge the sufficiency of the evidence supporting his false-imprisonment charge because it has no merit.

Case No. 18-1941:  State of Iowa v. Ryan James Mathews

Filed Apr 15, 2020

View Opinion No. 18-1941

            Appeal from the Iowa District Court for Dallas County, Michael K. Jacobsen, Judge.  AFFIRMED.  Considered by Bower, C.J., Ahlers, J., and Vogel, S.J.  Opinion by Vogel, S.J.  (3 pages)

            Ryan James Mathews appeals his conviction for forgery.  OPINION HOLDS: When viewing the record as a whole in the light most favorable to the State, we find sufficient evidence to conclude Mathews knew the check was a forgery at the time he presented it to the bank, and we affirm his conviction.

Case No. 18-1988:  State of Iowa v. Dijonis Burkett Brown

Filed Apr 15, 2020

View Opinion No. 18-1988

            Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.  CONVICTION AFFIRMED; SENTENCE VACATED IN PART AND REMANDED.  Considered by Tabor, P.J., Schumacher, J., and Blane, S.J.  Opinion by Blane, S.J. (17 pages)

           

            Dijonis Brown appeals his conviction following jury trial of first-degree robbery, a class “B” felony, in violation of Iowa Code sections 711.1 and .2 (2017).  He raises several ineffective-assistance-of-counsel claims and challenges an evidentiary ruling.  Brown also asks the court to remand his case to the district court so he may claim the benefit of a newly-enacted ameliorative sentencing statute applicable to mandatory minimums of first-degree robbery convictions.  OPINION HOLDS: We find Brown’s trial counsel was not ineffective and the district court did not abuse its discretion in its evidentiary ruling.  But, we find Brown is entitled to application of the ameliorative statute, so we vacate that portion of the sentencing order and remand for resentencing regarding the mandatory minimum. 

Case No. 18-2026:  State of Iowa v. Adam Benjamin Burkhead

Filed Apr 15, 2020

View Opinion No. 18-2026

            Appeal from the Iowa District Court for Polk County, Gregory D. Brandt, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J.  (7 pages)

            Adam Burkhead appeals his conviction for operating while intoxicated, first offense.  He believes the district court should have suppressed his breath test as he was unable to “validly consent to testing.”  He also condemns his trial counsel’s performance in raising the grounds for suppression.  OPINION HOLDS: Because the body camera footage showed the officer’s reasonable efforts to convey the implied consent warnings to Burkhead and to accommodate his explicit consent to submit to testing, we affirm the suppression ruling.  Next, because Burkhead’s prosecution is not one of those rare cases where the trial record alone is sufficient to resolve the claim of ineffective assistance of counsel, we reserve the claim for postconviction proceedings, if he decides to pursue them.

Case No. 18-2030:  Robert Gannon v. John Halferty, Jasper County Sheriff, acting in his individual and official capacities, and Jasper County, Iowa

Filed Apr 15, 2020

View Opinion No. 18-2030

            Appeal from the Iowa District Court for Marion County, Martha L. Mertz, Judge.  AFFIRMED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (12 pages)

            Plaintiff appeals the district court’s grant of summary judgment in favor of defendant. OPINION HOLDS: We affirm summary judgment against plaintiff granted by the district court based on defendants’ affirmative defense of substantial truth, and we also affirm on the basis of qualified privilege.

Case No. 18-2178:  Darrell Eugene Bizzett v. State of Iowa

Filed Apr 15, 2020

View Opinion No. 18-2178

            Appeal from the Iowa District Court for Woodbury County, Jeffrey A. Neary, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Carr, S.J.  Opinion by Carr, S.J.  (4 pages)

            Darrell Bizzett appeals the order granting summary disposition of his fourth application for postconviction relief.  OPINION HOLDS: Ignoring any other impediments to Bizzett’s application and assuming his allegations are true, Bizzett cannot show by clear and convincing evidence that no reasonable jury could have convicted him of murder. 

Case No. 18-2198:  State of Iowa v. Dantrell Akeem Jacobbie Matthews

Filed Apr 15, 2020

View Opinion No. 18-2198

            Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.  REVERSED AND REMANDED FOR NEW TRIAL.  Heard by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J. (13 pages)

            Dantrell Matthews appeals his convictions for carrying weapons and criminal gang participation.  Matthews argues there was insufficient evidence to support conviction on both charges and that his counsel was ineffective in failing to challenge specific elements of both charges and an improper jury instruction.  OPINION HOLDS: Our review of the record reveals sufficient evidence was presented to convict Matthews of both crimes.  However, counsel’s failure to request an instruction on the “going” element of carrying weapons constituted failure to perform an essential duty that prejudiced Matthews.  Accordingly, Matthews’s convictions on both counts are reversed and remanded for new trial.

Case No. 18-2236:  State of Iowa v. Thomas Russell Domenig

Filed Apr 15, 2020

View Opinion No. 18-2236

            Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell and Scott D. Rosenberg, Judges.  AFFIRMED.  Considered by Mullins, P.J., Greer, J., and Carr, S.J.  Opinion by Carr, S.J. (5 pages)

            Thomas Domenig appeals his conviction for possession of methamphetamine, second offense.  OPINION HOLDS: We affirm the denial of Domenig’s motion to suppress the items found during the search of his vehicle because the search fell under the automobile exception to the warrant requirement.  Domenig’s agreement to a trial on the minutes of evidence and immediate sentencing waived his challenge to the sufficiency of the trial court’s fact findings and its failure to rule on a pro se motion to dismiss.

Case No. 18-2241:  State of Iowa v. Heidi Fiems

Filed Apr 15, 2020

View Opinion No. 18-2241

            Appeal from the Iowa District Court for Des Moines County, Emily Dean, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Doyle and Schumacher, JJ.  Opinion by Bower, C.J.  (10 pages)

            Heidi Fiems appeals her conviction for child endangerment.  On appeal, she raises two ineffective-assistance-of-counsel claims and challenges two evidentiary rulings by the trial court.  OPINION HOLDS: Fiems did not establish she received ineffective assistance from counsel, and the court did not abuse its discretion in the evidentiary rulings.  We affirm.

Case No. 19-0041:  Thomas Webb and Laureen Webb v. Midwest Storm Company, LLC.

Filed Apr 15, 2020

View Opinion No. 19-0041

            Appeal from the Iowa District Court for Lee (South) County, Wyatt P. Peterson, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (7 pages)

 

            Midwest Storm Company, LLC (Midwest) claims the district court erred in denying its motions for judgment notwithstanding the verdict (JNOV) and new trial.  OPINION HOLDS: Because the plaintiffs’ claims fail as a matter of law, the district court erred in denying the motion for JNOV.  Midwest’s appellate claim regarding its motion for new trial was not preserved for appeal.

Case No. 19-0157:  Willie James Wilder v. State of Iowa

Filed Apr 15, 2020

View Opinion No. 19-0157

            Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (6 pages)

            Willie J. Wilder appeals the denial of his second postconviction-relief (PCR) application.  OPINION HOLDS: We conclude that Wilder’s second PCR application does not qualify for the Allison relation-back doctrine because it was not promptly filed after conclusion of his first PCR action and is therefore time barred.  The district court correctly dismissed Wilder’s the application.

Case No. 19-0316:  State of Iowa v. Darien DeMarqis Sims

Filed Apr 15, 2020

View Opinion No. 19-0316

            Appeal from the Iowa District Court for Polk County, Kevin A. Parker, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Schumacher, J.  (7 pages)

            Darien Sims appeals the district court decision revoking his deferred judgment on a charge of forgery and sentencing him.  OPINION HOLDS: We conclude the district court did not abuse its discretion in revoking Sims’s deferred judgment, as he admitted he violated terms of his probation.  We also find the district court did not improperly consider an unproven or unprosecuted offense when sentencing him.  We affirm the decision of the district court.

Case No. 19-0321:  State of Iowa v. Rodney Eugene Wadden

Filed Apr 15, 2020

View Opinion No. 19-0321

            Appeal from the Iowa District Court for Muscatine County, Mary E. Howes and Tom Reidel, Judges.  REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J.  (9 pages)

            Rodney Wadden appeals his conviction for driving while barred in violation of Iowa Code sections 321.561 and 321.562 (2018) and driving with a revoked license in violation of Iowa Code section 321J.21, challenging the denial of his motion to suppress evidence obtained following the stop of his vehicle.  OPINION HOLDS: On our de novo review, we conclude the officer did not have a reasonable suspicion of criminal activity to justify stopping Wadden’s vehicle.  We reverse and remand for further proceedings consistent with this decision.

Case No. 19-0349:  James W. Palensky and Teresa A. Scheib-Palensky, as Trustees of the Palensky 1998 Trust dated February 25, 1998 v. Story County Board of Adjustment

Filed Apr 15, 2020

View Opinion No. 19-0349

            Appeal from the Iowa District Court for Story County, Bethany J. Currie, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (16 pages)

            A county board of adjustment appeals a district court decision reversing and remanding its grant of a conditional use permit for want of written findings.  OPINION HOLDS: We deny the motion to dismiss this appeal filed by the permit applicant, as we conclude the district court’s order was a final adjudication of the parties’ rights.  Because we agree the board did not substantially comply with the requirement to establish findings, the district court is affirmed.

Case No. 19-0387:  Robert Lynn Vaughan v. State of Iowa

Filed Apr 15, 2020

View Opinion No. 19-0387

            Appeal from the Iowa District Court for Lee (North) County, Mark Kruse, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (6 pages)

            Robert Vaughan appeals the denial of his postconviction-relief application.  He argues trial counsel was ineffective and newly-discovered evidence warrants a new trial.  OPINION HOLDS: Vaughan has not met his burden of proof on any of his claims.  We affirm.

Case No. 19-0446:  State of Iowa v. Preston Michael Brittain

Filed Apr 15, 2020

View Opinion No. 19-0446

            Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  (3 pages)

            Preston Brittain appeals the sentences imposed following his pleas of guilty to three counts of sexual abuse in the third degree.  He contends the district court abused its discretion in imposing a prison term instead of suspending the sentences.  OPINION HOLDS: Finding no abuse of the court’s sentencing discretion, we affirm.

Case No. 19-0448:  State of Iowa v. Deonta Joe Sistrunk

Filed Apr 15, 2020

View Opinion No. 19-0448

            Appeal from the Iowa District Court for Scott County, Mark R. Lawson, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  (3 pages)

            Deonta Sistrunk appeals his sentence for second degree theft.  He claims the court ordered an illegal sentence, challenging the value of the item taken.  OPINION HOLDS: Sistrunk’s claim is not one of an illegal sentence.  We find the court did not abuse its discretion in sentencing and affirm.

Case No. 19-0454:  State of Iowa v. Jacob A. Boothby

Filed Apr 15, 2020

View Opinion No. 19-0454

            Appeal from the Iowa District Court for Clinton County, Nancy S. Tabor, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Tabor, J., takes no part.  Opinion by May, J. (3 pages)

            Jacob Boothby appeals from his convictions of assault with a dangerous weapon and third-degree criminal mischief.  He raises two ineffective-assistance claims.  OPINION HOLDS: We find the record insufficient to address either claim.  So we preserve the claims and affirm Boothby’s convictions.

Case No. 19-0479:  Stephen Patrick Heyland v. Des Moines County, Iowa

Filed Apr 15, 2020

View Opinion No. 19-0479

            Appeal from the Iowa District Court for Des Moines County, Daniel P. Wilson, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J.  (13 pages)

 

            The plaintiff appeals the district court ruling granting summary judgment in favor of the defendant in the plaintiff’s lawsuit for defamation, violation of the whistleblower statute, and intentional infliction of emotion distress.  OPINION HOLDS: We affirm the district court’s grant of summary judgment on all counts.

Case No. 19-0594:  Nesset, Inc. d/b/a Weber Paint and Glass v. Charles Jones and Green Development Sokol, LLC

Filed Apr 15, 2020

View Opinion No. 19-0594

            Appeal from the Iowa District Court for Linn County, Mary E. Chicchelly, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J.  (12 pages)

            Charles Jones and his limited liability company, Green Development Sokol, appeal the district court’s award of $17,708—plus interest and attorney fees—to Nesset, Inc. doing business as Weber Paint and Glass.  Jones and Green Development raise three issues.  First, they complain Weber Paint misjoined its equitable action to foreclose a mechanic’s lien with a breach of contract claim.  Second, Jones alleges the district court mistakenly held him personally liable for the breach.  And third, they claims the court should have reduced Weber Paint’s award based on deficiencies in the work that company performed.  OPINION HOLDS: We grant relief on one of the appellants’ three claims.  They waived their first claim by failing to timely raise the misjoinder issue.  But on Jones’s second claim, we agree the court misapplied the burden of proof in imposing personal liability.  On the third issue, the court properly rejected an offset based on the appellants’ allegations of Weber Paint’s substandard performance.  Finally, we remand for the district court to award reasonable appellate attorney fees to Weber Paint, as the prevailing plaintiff.

Case No. 19-0748:  State of Iowa v. Eric Michael Cole

Filed Apr 15, 2020

View Opinion No. 19-0748

            Appeal from the Iowa District Court for Johnson County, Mary E. Chicchelly, Judge.  SENTENCE VACATED AND CASE REMANDED WITH DIRECTIONS.  Considered by Bower, C.J., Greer, J., and Carr, S.J.  Opinion by Carr, S.J.  (3 pages)

            Eric Cole appeals after pleading guilty to willful injury resulting in bodily injury and domestic abuse assault causing bodily injury.  OPINION HOLDS: Cole’s counsel was ineffective by failing to object to the prosecutor’s breach of the plea agreement.  We vacate his sentence and remand to the district court for resentencing before a different district court judge.

Case No. 19-0770:  In the Interest of T.L., Minor Child

Filed Apr 15, 2020

View Opinion No. 19-0770

            Appeal from the Iowa District Court for Polk County, Romonda Belcher, District Associate Judge.  AFFIRMED IN PART AND REVERSED IN PART.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J.  (7 pages)

            A juvenile appeals an order for restitution in a delinquency proceeding.  OPINION HOLDS: We find the evidence insufficient to support the court’s order for restitution as to the items of restitution challenged on appeal.  We affirm the restitution as to the victim’s insurance deductible but reverse as to the remaining amounts of restitution.

Case No. 19-0793:  Eddie Charles Risdal v. State of Iowa

Filed Apr 15, 2020

View Opinion No. 19-0793

            Appeal from the Iowa District Court for Story County, Angela L. Doyle, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Doyle and May, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            Eddie Risdal appeals the district court’s dismissal of his application for postconviction relief, contending “the district court erred by rejecting [his claims] on procedural grounds” and postconviction counsel was ineffective in failing to recast his claims as constitutional issues.  OPINION HOLDS: We affirm the dismissal of Risdal’s 2018 postconviction-relief application.

Case No. 19-0889:  Michael Troy Eskridge v. State of Iowa

Filed Apr 15, 2020

View Opinion No. 19-0889

            Appeal from the Iowa District Court for Scott County, Stuart P. Werling, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J.  (6 pages)

            Michael Eskridge sold crystal methamphetamine to undercover police officer three times.  The district court sentenced him to a mandatory minimum of eight and one-third years.  In his allocution, Michael asked the court to consider letters and class certificates and to use its discretion to reduce the mandatory minimum sentence from 8.3 years to 5.6 years.  At the postconviction-relief (PCR) hearing, the PCR court denied his claim that because his trial attorney did not move to admit the letters or certificates into evidence his mandatory minimum sentence would have been different.  On appeal, Eskridge claims that trial counsel’s failure to enter the documents as exhibits at sentencing “cut off his ability to appeal the sentence in his case.”  OPINION HOLDS: Eskridge cannot show that had trial counsel offered letters and certificates into the record, a reasonable probability existed that he would have been successful in appealing an adverse sentencing decision.  Eskridge is not entitled to relief.

Case No. 19-0908:  In the Matter of T.M., Alleged to Be Seriously Mentally Impaired

Filed Apr 15, 2020

View Opinion No. 19-0908

            Appeal from the Iowa District Court for Polk County, David Porter, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J.  (6 pages)

            T.M. appeals an order for his involuntary hospitalization, challenging the sufficiency of the evidence supporting the court’s conclusion he is seriously mentally impaired.  OPINION HOLDS: On our review, we find no serious or substantial doubts about the correctness of the district court’s conclusion drawn from the evidence that T.M. was seriously mentally impaired within the meaning of Iowa Code section 229.1(20) (2019).  As such, we affirm.

Case No. 19-0943:  Vanessa Bruss v. Grout Scouts, Inc. and Accident Fund Insurance Company of America

Filed Apr 15, 2020

View Opinion No. 19-0943

            Appeal from the Iowa District Court for Polk County, Celene Gogerty, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J.  (8 pages)

            Vanessa Bruss appeals the district court’s grant of defendants’ motion to dismiss her petition for judicial review of a ruling from the worker’s compensation commission.  Bruss argues she substantially complied with Iowa Code section 17A.19(2) (2019) by seeking out and obtaining an agreement from respondents’ counsel to accept service within the ten-day period.  She further argues the respondents should be equitably estopped from arguing the district court lacks jurisdiction over her petition for judicial review.  OPINION HOLDS: Bruss did not substantially comply with section 17A.19(2) by obtaining an agreement from respondents’ counsel to accept service but not sending a copy of the petition to respondents’ counsel within the ten-day period.  Bruss did not meet her burden to prove the elements of equitable estoppel by clear and convincing evidence.  We affirm.

Case No. 19-1022:  Eldon D. Jaeger and Barbara Ann Jaeger v. Gerald F. Manemann and Donna M. Manemann

Filed Apr 15, 2020

View Opinion No. 19-1022

            Appeal from the Iowa District Court for Dubuque County, Michael J. Shubatt, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            Eldon and Barbara Jaeger appeal the district court’s order quieting title in Gerald and Donna Manemann to the disputed boundary line between the parties’ neighboring properties.  OPINION HOLDS: We affirm the district court’s finding of a boundary by acquiescence and its delineation of the boundary.

Case No. 19-1028:  State of Iowa v. Justin M. Woods

Filed Apr 15, 2020

View Opinion No. 19-1028

            Appeal from the Iowa District Court for Scott County, Mary E. Howes, Judge. AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J. (3 pages)          

            Justin Woods appeals his conviction, following a guilty plea, of manufacturing, delivering, or possessing methamphetamine with the intent to manufacture or deliver, claiming his counsel rendered ineffective assistance in failing to move for suppression of evidence obtained as an allegedly unconstitutional seizure.  OPINION HOLDS: We find the record inadequate to determine whether counsel failed to perform an essential duty or prejudice resulted.  We therefore affirm Woods’s conviction but preserve his ineffective-assistance claim for a possible postconviction-relief proceeding.

Case No. 19-1047:  State of Iowa v. Francisco M. Cardona

Filed Apr 15, 2020

View Opinion No. 19-1047

            Appeal from the Iowa District Court for Scott County, Mary E. Howes, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Schumacher, J. (10 pages)

            Francisco Cardona appeals his convictions for second-degree sexual abuse, alleging the witness testimony, because of inconsistencies and contradictions, was insufficient to support the verdict.  He also alleges ineffective assistance of counsel.  OPINION HOLDS: The witness testimony was sufficient to convince a rational factfinder of Cardona’s guilt.  The inconsistencies and contradictions highlighted by the defense do not lead us to apply the rarely-invoked doctrine used in State v. Smith, 508 N.W.2d 101 (Iowa Ct. App. 1993).  The witness testimony provided overwhelming evidence of Cardona’s guilt.  A motion for a new trial or in arrest of judgment based on the weight-of-the-evidence standard would thus have been meritless.  Consequently, trial counsel had no duty to make such a motion.  Additionally, there is no reasonable probability of a different result had counsel made such a motion, and Cardona is therefore unable to prove prejudice.  Accordingly, we reject his ineffective-assistance-of-counsel claim.

Case No. 19-1111:  Gregory Paul Karwal v. Jodi Lynn Brookshire-Bailey

Filed Apr 15, 2020

View Opinion No. 19-1111

            Appeal from the Iowa District Court for Cass County, Margaret Popp Reyes, Judge.  AFFIRMED AS MODIFIED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J.  (13 pages)

            Greg Karwal appeals the district court ruling on his petition to establish paternity, custody, support, and visitation.  Greg argues the court erred by granting Jodi Brookshire-Bailey physical care of their minor child, declining to split uncovered medical expenses equally between the parties, and determining the child’s surname.  Jodi requests attorney fees.  OPINION HOLDS: We modify the district court order on the uncovered medical expenses and the child’s surname and affirm the modified district court order.  We decline to award appellate attorney fees.

Case No. 19-1122:  In re the Marriage of Garmoe

Filed Apr 15, 2020

View Opinion No. 19-1122

            Appeal from the Iowa District Court for Lee (North) County, John M. Wright, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by May, J.  (6 pages)

            Preston Garmoe appeals the physical care and spousal support provisions of his dissolution decree.  He also appeals the district court’s determination that he should pay a portion of Amy Garmoe’s attorney fees.  OPINION HOLDS: The physical care and spousal support provisions of the decree are equitable, so we affirm.  The district court did not abuse its discretion in ordering Preston to pay a portion of Amy’s attorney fees.  We decline to award Amy appellate attorney fees.

Case No. 19-1163:  Rockette Trucking and Construction, LTD v. Runde Auto Group of Iowa, Inc.

Filed Apr 15, 2020

View Opinion No. 19-1163

            Appeal from the Iowa District Court for Delaware County, Monica Zrinyi-Wittig, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J.  Special Concurrence by Greer, J.  (14 pages)

            Rockette Trucking and Construction, Ltd. (Rockette Construction) sought damages for replacing its ruined engine and for loss of use of its truck while awaiting the replacement engine.  Following a bench trial, the district court found Runde Auto Group of Iowa, Inc. (Runde Auto) liable and awarded damages.  Runde Auto appeals, raising issues regarding claimed discovery abuses by Rockette Construction and insufficient evidence of loss-of-use damages.  OPINION HOLDS: The district court did not abuse its discretion in refusing to exclude witnesses or evidence as a result of the claimed discovery abuses.  The evidence of “mobilization charges” is not sufficient evidence of Rockette Construction’s loss-of-use damages.  Therefore, we find insufficient evidence to support the district court’s award of loss-of-use damages.  We affirm the liability of Runde Auto.  Because the evidence of cost-of-repair damages was uncontroverted, we remand for entry of judgment for cost-of-repair damages only.  SPECIAL CONCURRENCE ASSERTS: I concur in this decision with a caveat.  I concur in the decision because even if the non-disclosed expert opinions were excluded from this record, other testimony supported the trial court’s liability finding.  Otherwise I would have concluded an abuse of discretion occurred for failing to limit the expert testimony without good cause established for the untimely disclosure.

Case No. 19-1193:  State of Iowa v. Tashieyana Loretta ONeal

Filed Apr 15, 2020

View Opinion No. 19-1193

            Appeal from the Iowa District Court for Black Hawk County, Patrice J. Eichman, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J.  (3 pages)

            Tashieyana ONeal appeals the sentences imposed for her convictions of driving while barred, an aggravated misdemeanor, and eluding, a serious misdemeanor.  After pleading guilty to the charges, ONeal now asserts the trial court abused its discretion by sentencing her to six days in jail.  OPINION HOLDS: The district court sentenced ONeal pursuant to the plea agreement reached by ONeal and the State.  We affirm.

Case No. 19-1204:  In re the Marriage of Behymer

Filed Apr 15, 2020

View Opinion No. 19-1204

            Appeal from the Iowa District Court for Mahaska County, Dan Wilson, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J.  (8 pages)

            The mother appeals the modification of the parties’ custody decree.  The modification order changed the custodial arrangement from joint physical care to placing physical care of the parties’ minor child with the father.  On appeal, the mother argues placing physical care with the father is not in the child’s best interest.  Alternatively, she argues she should receive more visitation time.  Both parents request appellate attorney fees.  OPINION HOLDS: It is in the child’s best interest to modify the decree to place physical care with the father.  No modification of the visitation schedule is warranted.  No appellate attorney fees are awarded to either party.  Court costs are assessed to the mother.

Case No. 19-1253:  Rick Donald Rhebb v. Janet Marie Clark

Filed Apr 15, 2020

View Opinion No. 19-1253

            Appeal from the Iowa District Court for Johnson County, Paul Miller, Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  (9 pages)

            This case involves a dispute between adjacent property owners Rick Rhebb and Janet Clark related to the boundary between their respective properties in Iowa City.  Rhebb appeals the trial court’s findings of a boundary by acquiescence or, in the alternative, adverse possession.  Clark cross-appeals the denial of an award of damages for trespass.  OPINION HOLDS: Because substantial evidence supports the trial court’s findings and conclusion of a boundary by acquiescence, we affirm on Rhebb’s appeal.  The evidence Clark presented is wholly insufficient to meet her burden to prove the damages she claims.  We therefore affirm on the cross-appeal.

Case No. 19-1260:  Sahar Taha Faraj v. Musallam Yassen Faraj

Filed Apr 15, 2020

View Opinion No. 19-1260

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J.  (7 pages)

 

            The district court issued a protective order against Musallam Yassen Faraj after finding Musallam committed a domestic abuse assault against his wife, Sahar Faraj.  On appeal, Musallam claims there was insufficient evidence he committed an assault and the district court erred by restricting his visitation and contact with the couple’s children.  OPINION HOLDS: Upon our de novo review, we find Musallam committed domestic abuse assault and affirm the district court.

Case No. 19-1300:  State of Iowa v. Tavion Robinson

Filed Apr 15, 2020

View Opinion No. 19-1300

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Doyle and May, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Tavion Robinson appeals his sentences for second-degree burglary, third-degree burglary, and unauthorized use of a credit card, arguing that (1) the record contains insufficient evidence to corroborate accomplice testimony on the burglary charges and (2) the district court abused its discretion and considered an impermissible factor in sentencing him.  OPINION HOLDS: Because the record contains sufficient evidence to corroborate the accomplice’s testimony, and because the district court provided a sentence with enough original content founded upon valid considerations, we affirm.

Case No. 19-1412:  In the Interest of C.S. and N.S., Minor Children

Filed Apr 15, 2020

View Opinion No. 19-1412

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Ahlers, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            A mother appeals the termination of her parental rights to two children, contending, “[T]he Juvenile Court erred in finding that legally sufficient notice to the parents should be dispensed with in this case without requiring publication, and in subsequently terminating parental rights.”  OPINION HOLDS: We conclude that because the mother’s whereabouts were unknown and could not “be ascertained by reasonably diligent search,” the juvenile court appropriately dispensed with notice of the termination petition.  As the claimed insufficiency of the State’s search efforts is the only issue the mother raises on appeal and we are unpersuaded by that argument, we affirm the termination ruling. 

Case No. 19-1427:  In re the Marriage of Hoffmeyer

Filed Apr 15, 2020

View Opinion No. 19-1427

            Appeal from the Iowa District Court for Palo Alto County, Don E. Courtney, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  Special Concurrence by Vaitheswaran, P.J.  (10 pages)

            Carl Hoffmeyer appeals the district court’s denial of his application seeking a credit for child support.  OPINION HOLDS: Upon our review, we agree with the State that Carl’s due process argument was not preserved for our review because it was not raised or ruled on by the district court.  We also agree with the State and district court that the court was without authority to modify retroactively the amount of support due.  So we affirm the district court’s ruling denying Carl’s application.  SPECIAL CONCURRENCE ASSERTS: Equity might dictate relief under these circumstances.  But, as inequitable as the facts appear, I agree with the district court and the majority that Carl failed to seek timely relief.

Case No. 19-1465:  Darnell Demery v. State of Iowa

Filed Apr 15, 2020

View Opinion No. 19-1465

            Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Mullins, J.  (5 pages)

            Darnell Demery appeals the summary disposition of his application for postconviction relief.  OPINION HOLDS: We affirm the summary disposition of Demery’s application for postconviction relief.

Case No. 19-1819:  In the Matter of R.J.G., Alleged to Be Seriously Mentally Impaired

Filed Apr 15, 2020

View Opinion No. 19-1819

            Appeal from the Iowa District Court for Woodbury County, Patrick H. Tott, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J.  (6 pages)

            Following a review-commitment hearing, the district court found R.G. to be seriously mentally impaired pursuant to Iowa Code chapter 229 (2019) and ordered her to undergo inpatient treatment.  R.G. appeals.  OPINION HOLDS: Substantial evidence supports the findings that all elements necessary for civil commitment under chapter 229 have been met.  Therefore, we affirm the district court.

Case No. 19-1834:  In the Interest of C.Z., Minor Child

Filed Apr 15, 2020

View Opinion No. 19-1834

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  (7 pages)

            A mother appeals the termination of her parental rights to her child, asserting termination is not in the child’s best interests.  OPINION HOLDS: Termination of the mother’s parental rights in the child’s best interests. 

Case No. 19-1955:  In the Interest of E.C. and L.C., Minor Children

Filed Apr 15, 2020

View Opinion No. 19-1955

            Appeal from the Iowa District Court for Mahaska County, Rose Anne Mefford, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., Doyle, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (3 pages)

            A mother appeals the termination of her parental rights to two children.  OPINION HOLDS: We affirm the decision of the juvenile court to terminate the mother’s parental rights.

Case No. 19-1956:  In the Interest of B.R., Minor Child

Filed Apr 15, 2020

View Opinion No. 19-1956

            Appeal from the Iowa District Court for Clinton County, Mark Fowler, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J.  (2 pages)

            A mother appeals an order terminating her parental rights in a proceeding under Iowa Code chapter 600A (2019).  OPINION HOLDS: We affirm the district court order terminating the mother’s parental rights. 

Case No. 19-1984:  In the Interest of L.T. and L.T., Minor Children

Filed Apr 15, 2020

View Opinion No. 19-1984

            Appeal from the Iowa District Court for Dallas County, Virginia Cobb, District Associate Judge.  AFFIRMED.  Considered by May, P.J., Schumacher, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (10 pages)

            A mother appeals the termination of her parental rights to two children.  She contends (1) the State failed to prove the grounds for termination cited by the juvenile court; (2) termination was not in the children’s best interests; and (3) the children’s placement with the father should have precluded termination of her parental rights.  OPINION HOLDS: We affirm the decision of the juvenile court to terminate the mother’s parental rights.

Case No. 19-2141:  In the Interest of E.F., Minor Child

Filed Apr 15, 2020

View Opinion No. 19-2141

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

            Former foster parents for a child appeal the denial of their motion to intervene in a child-in-need-of-assistance case.  OPINION HOLDS: We determine the juvenile court did not err in denying the application to intervene and affirm.

Case No. 19-2142:  In the Interest of L.M., Minor Child

Filed Apr 15, 2020

View Opinion No. 19-2142

            Appeal from the Iowa District Court for Warren County, Brendan Greiner, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., Mullins, J., and Carr, S.J.  Opinion by Carr, S.J.  (5 pages)

            A father appeals the termination of his parental rights to his child.  OPINION HOLDS: Clear and convincing evidence supports terminating the father’s parental rights under Iowa Code section 232.116(1)(h) (2019).  The father failed to challenge the State’s reasonable efforts to return the child to his care and has thus waived this claim on appeal.  Termination is in the child’s best interests, and we decline to apply Iowa Code section 232.116(3)(a) to avoid terminating the father’s parental rights.

Case No. 20-0022:  In the Interest of G.S., O.S., and C.S., Minor Children

Filed Apr 15, 2020

View Opinion No. 20-0022

            Appeal from the Iowa District Court for Story County, Stephen A. Owen, District Associate Judge.  REVERSED IN PART AND REMANDED. Considered by Bower, C.J., May, J., and Blane, S.J.  Opinion by Blane, S.J.  (13 pages)

            A father appeals from a child-in-need-of-assistance (CINA) dispositional order that granted the department of human services and the county attorney a limited waiver of confidentiality so the state authorities could inform other entities of the findings in the case and provide notice that N.S. presents a danger to children with whom he has unsupervised contact.  OPINION HOLDS: The juvenile court order that provided state authorities could advise “any relevant private or governmental entity in order to reasonably protect children in this community” exceeded statutory confidentiality in CINA proceedings and on remand must be limited to what statutes authorize.

Case No. 20-0035:  In the Interest of F.A., Minor Child

Filed Apr 15, 2020

View Opinion No. 20-0035

            Appeal from the Iowa District Court for Cerro Gordo County, Adam D. Sauer, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., Schumacher, J., and Carr, S.J.  Opinion by Carr, S.J.  (4 pages)

            A mother and a father separately appeal the termination of their parental rights to their child.  OPINION HOLDS: We may affirm the termination of both the mother’s and the father’s parental rights under Iowa Code section 232.116(1)(h) (2019).  The record shows termination is in the child’s best interests given each parent’s lack of progress during the child-in-need-of-assistance proceedings.  The father failed to preserve error on his challenge to the reasonable-efforts requirement.  And we decline to delay permanency for six months because there is no basis for finding the need for the child’s removal would no longer exist at the end of that period.  We affirm the termination of both the mother’s and the father’s parental rights.

Case No. 20-0039:  In the Interest of O.J. and L.J., Minor Children

Filed Apr 15, 2020

View Opinion No. 20-0039

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  (7 pages)

            A mother and father separately appeal the termination of their parental rights to their children.  Each contends the State failed to prove the grounds for termination by clear and convincing evidence, termination of their parental rights is not in the best interests of the children, and the court should allow them an additional six months to achieve reunification.  OPINION HOLDS: We affirm on both appeals.

Case No. 20-0057:  In the Interest of D.G. and M.L., Minor Children

Filed Apr 15, 2020

View Opinion No. 20-0057

            Appeal from the Iowa District Court for Polk County, Thomas Mott, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J.  (5 pages)

            The mother appeals the termination of her parental rights to two of her children, D.G., born in 2013, and M.L., born in 2018.  The mother purports to challenge whether the children could be returned to her care at the time of the termination hearing in December 2019, if termination is in the children’s best interests, and whether a permissive factor in Iowa Code section 232.116(3) (2019) precludes termination.  OPINION HOLDS: Insofar as her claims have been preserved for our review, we find the statutory grounds for termination were met and termination of the mother’s rights is in these children’s best interests.  We refuse to consider the mother’s claim regarding the application of permissive factors, as she did not present evidence nor make argument to the juvenile court regarding the preservation of her rights.

Case No. 20-0116:  In the Interest of A.M. and W.M., Minor Children

Filed Apr 15, 2020

View Opinion No. 20-0116

            Appeal from the Iowa District Court for Linn County, Cynthia S. Finley, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., Greer, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (7 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: A statutory ground authorizing termination is satisfied.  Termination is in the children’s best interests.  We decline to apply any of the permissive exceptions to termination found in Iowa Code section 232.116(3) (2019). 

Case No. 20-0138:  In the Interest of A.C., Minor Child

Filed Apr 15, 2020

View Opinion No. 20-0138

            Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J.  (7 pages)

            The mother and father separately appeal the termination of their parental rights to their one-year-old child, A.C.  The juvenile court terminated both parents’ rights under paragraphs (h) and (l) of Iowa Code section 232.116(1) (2019) and also terminated the father’s rights under paragraph (e).  Here, the mother challenges one of the statutory grounds, argues additional time for reunification is warranted, and asks that a permissive factor be applied to save the parent-child relationship.  The father challenges two of the statutory grounds for termination, argues the State failed to make reasonable efforts at reunification, and asks that a permissive factor be applied to save the parent-child relationship.  OPINION HOLDS: Having reviewed each of the issues preserved for our review, we affirm the termination of both the mother’s and the father’s parental rights.

Case No. 20-0145:  In the Interest of T.W., Minor Child

Filed Apr 15, 2020

View Opinion No. 20-0145

            Appeal from the Iowa District Court for Madison County, Brendan Greiner, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by May, J.  Special Concurrence by Doyle, J.  (15 pages)

            A father appeals the juvenile court’s termination of his parental rights.  OPINION HOLDS: We conclude termination is appropriate under Iowa law and consistent with the child’s best interest.  SPECIAL CONCURRENCE ASSERTS: I concur with the majority’s disposition, but take this opportunity to comment on the conundrum faced by the court—has the supreme court supplanted the “adjudicatory harm” standard with a more relaxed “safely returned” standard in applying the fourth element of Iowa Code section 232.116(1)(h)?  I believe the “safely returned” standard is merely judicial shorthand for the “adjudicatory harm” standard, and under either, the State must show that the child cannot be returned to the parent’s custody without risk of adjudicatory harm.

Case No. 20-0147:  In the Interest of J.S.-G., Minor Child

Filed Apr 15, 2020

View Opinion No. 20-0147

            Appeal from the Iowa District Court for Black Hawk County, Daniel L. Block, Associate Juvenile Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Schumacher, J.  (8 pages)

            A mother appeals from a district court order terminating her parental rights.  OPINION HOLDS: We find termination warranted under Iowa Code section 232.116(1)(h) (2019).  We further agree with the denial of a six-month extension.

Case No. 20-0214:  In the Interest of S.J., Minor Child

Filed Apr 15, 2020

View Opinion No. 20-0214

            Appeal from the Iowa District Court for Cerro Gordo County, Adam D. Sauer, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Schumacher, J.  (5 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: We affirm the denial of the six-month extension requested by the mother pursuant to Iowa Code section 232.104(2)(b) (2019). Accordingly, we affirm the termination of the mother’s parental rights by the district court.

Case No. 20-0220:  In the Interest of K.P., Minor Child

Filed Apr 15, 2020

View Opinion No. 20-0220

            Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J.  (5 pages)

            The mother appeals a combined order of dispositional review and confirming removal of the child from the mother’s care.  OPINION HOLDS: Based on our de novo review, the juvenile court’s order confirming removal of the child from the mother’s care and custody and placing the child in the sole care and custody of the father subject to the mother’s supervised visitation is affirmed.

Case No. 20-0224:  In the Interest of J.S., Minor Child

Filed Apr 15, 2020

View Opinion No. 20-0224

            Appeal from the Iowa District Court for Dubuque County, Thomas J. Straka, Associate Juvenile Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Schumacher, J.  Special concurrence by Tabor, P.J.  (9 pages)

            A father appeals the juvenile court decision terminating his parental rights.  OPINION HOLDS: We find there is clear and convincing evidence in the record to support termination of the father’s parental rights.  The father waived his claim concerning reasonable efforts by not raising it before the juvenile court.  We conclude termination of the father’s rights is in the child’s best interests.  We affirm the decision of the juvenile court.  SPECIAL CONCURRENCE ASSERTS: The Department of Human Services (DHS) is required to follow its statutory mandate to provide reunification services even when a parent is incarcerated.  Yet, it does not appear the DHS made any real effort to assess the feasibility of regular supervised visits between J.S. and his father when he was incarcerated in Wisconsin.  Lack of supervised visitation for the father during that time was a lost opportunity.  Resources are available to help parents’ attorneys navigate the issues facing incarcerated parents and the DHS workers must not operate on the assumption that incarcerated parents cannot be allowed visitation.

Case No. 20-0306:  In the Interest of A.C., Minor Child

Filed Apr 15, 2020

View Opinion No. 20-0306

            Appeal from the Iowa District Court for Scott County, Christine Dalton, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J.  (7 pages)

            A mother appeals the termination of her parental rights.  She argues termination of her parental rights is not in the child’s best interest.  She also argues the child’s placement with a relative and the closeness of her bond with the child should preclude termination or at least warrant a guardianship instead.  OPINION HOLDS: Termination is in the child’s best interest and the permissive exceptions of section 232.116(3) do not justify avoidance of termination in favor of a guardianship.  We affirm.

Case No. 20-0309:  In the Interest of L.J., Minor Child

Filed Apr 15, 2020

View Opinion No. 20-0309

            Appeal from the Iowa District Court for Black Hawk County, Daniel L. Block, Associate Juvenile Judge.  AFFIRMED.  Considered by Mullins, P.J., Schumacher, J., and Scott, S.J.  Opinion by Scott, S.J.  (6 pages)

            A mother appeals the termination of her parental rights to her child.  She challenges the sufficiency of the evidence supporting the statutory grounds for termination cited by the juvenile court and argues she should have been granted an additional six months to work toward reunification.  OPINION HOLDS: We affirm the juvenile court’s termination of the mother’s parental rights.

Case No. 20-0334:  In the Interest of D.T., Minor Child

Filed Apr 15, 2020

View Opinion No. 20-0334

            Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge.  AFFIRMED.  Considered by May, P.J., Ahlers, J., and Vogel, S.J.  Opinion by Vogel, S.J.  (3 pages)

            The mother appeals the adjudication of her child as in need of assistance.  OPINION HOLDS: After our de novo review of the record, we agree with the juvenile court’s findings that clear and convincing evidence supports the adjudication of the child as in need of assistance and the continued adjudication and findings as stated in the February 7, 2020 dispositional order.  

Case No. 18-0179:  State of Iowa v. Robert Arthur Reynolds

Filed Apr 01, 2020

View Opinion No. 18-0179

            Appeal from the Iowa District Court for Pottawattamie County, Susan Larson Christensen, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Vaitheswaran, P.J. (11 pages)

            Robert Reynolds appeals his conviction for second-degree murder, alleging that (1) the district court lacked authority to hear the case because the trial information was filed in West Pottawattamie County rather than East Pottawattamie County; (2) the district court violated his due process rights by disallowing an insanity defense; and (3) the district court’s finding of guilt was not supported by sufficient evidence and was contrary to the weight of the evidence.  OPINION HOLDS: We affirm.

Case No. 18-1476:  Lloyd Raymond Haywood v. State of Iowa

Filed Apr 01, 2020

View Opinion No. 18-1476

            Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.  Opinion by Mullins, J.  (9 pages)

            Lloyd Haywood appeals the denial of his application for postconviction relief (PCR).  OPINION HOLDS: We find Haywood failed to carry his burden to prove either first or second trial counsel provided Haywood with ineffective assistance.  We preserve the claim of ineffective assistance toward PCR counsel for a possible future PCR claim.  Finally, we find Haywood failed to meet his burden to prove his actual-innocence claim.

Case No. 18-1758:  State of Iowa v. Kurtis Michael Green

Filed Apr 01, 2020

View Opinion No. 18-1758

            Appeal from the Iowa District Court for Boone County, Stephen A. Owen, District Associate Judge.  CONVICTION AFFIRMED; SENTENCE VACATED IN PART AND REMANDED.  Heard by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J. (10 pages)          

            Kurtis Green appeals his conviction of domestic abuse assault by strangulation causing bodily injury and part of the sentence imposed.  He argues his counsel rendered ineffective assistance in failing to adequately challenge the sufficiency of the evidence to support his conviction.  He also argues his counsel was ineffective in failing to object to certain evidence as in violation of his right to confrontation.  Finally, he argues the court erred in ordering him to pay court costs as restitution.  OPINION HOLDS: We find Green’s conviction is supported by substantial evidence and counsel was therefore not ineffective in failing to properly challenge the sufficiency of the evidence.  We preserve for postconviction relief Green’s claim counsel was ineffective in failing to object to certain evidence as in violation of his right to confrontation.  We thus affirm Green’s conviction.  However, we find the district court did not follow the proper procedures for the ordering of restitution.  We therefore vacate the challenged sentencing provision and remand the matter to the district court for completion of a restitution plan and a determination of Green’s reasonable ability to pay. 

Case No. 18-1822:  State of Iowa v. Edwin J. Goodwin, Jr.

Filed Apr 01, 2020

View Opinion No. 18-1822

            Appeal from the Iowa District Court for Scott County, Joel W. Barrows, Judge.  AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Heard by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J. (18 pages)

            A jury convicted Edwin Goodwin Jr. of five counts of robbery in the second degree and one count of ongoing criminal conduct through specified unlawful activity.  On appeal, Goodwin maintains the trial court abused its discretion in admitting evidence of text messages over Goodwin’s authentication and relevancy objections.  He further contends the evidence at trial failed to support the “continuing basis” element of his conviction for ongoing criminal conduct and that trial counsel provided ineffective assistance by failing to object to evidence Goodwin fled from the police when they tried to apprehend him.  OPINION HOLDS: The court did not abuse its discretion in admitting evidence of text messages over Goodwin’s authentication and relevancy objections, and Goodwin’s ineffective-assistance claim fails because he cannot establish prejudice.  That said, because insufficient evidence supports the “continuing basis” of Goodwin’s ongoing-criminal-conduct conviction, we vacate that conviction and sentence.  We remand this matter for entry of dismissal with prejudice of the charge.

Case No. 18-1835:  Surgery Center of Cedar Rapids v. Iowa Department of Public Health

Filed Apr 01, 2020

View Opinion No. 18-1835

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (18 pages)

            Surgery Center of Cedar Rapids and intervenor UnityPoint Health Cedar Rapids appeal from the district court’s ruling on judicial review affirming the Iowa Department of Health’s decision to issue a certificate of need to Fox Eye Surgery, LLC (Fox Eye).  OPINION HOLDS: Like the district court, we affirm the department’s approval of Fox Eye’s application for a certificate of need.

Case No. 18-1863:  State of Iowa v. Kole Alexander Higgins

Filed Apr 01, 2020

View Opinion No. 18-1863

            Appeal from the Iowa District Court for Greene County, Joseph B. McCarville, District Associate Judge.  REVERSED AND REMANDED.  Heard by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J.  (14 pages)

            Kole Higgins challenges his five drug-related convictions.  He claims the district court should have suppressed evidence found at his home during the execution of a search warrant not supported by probable cause.  OPINION HOLDS: The search warrant application offered no observations, direct or indirect, showing Higgins kept drugs in his home.  Without that nexus, the issuing magistrate did not have a substantial basis to find probable cause for the warrant. 

Case No. 18-1874:  State of Iowa v. LC DeWayne Johnson Jr.

Filed Apr 01, 2020

View Opinion No. 18-1874

            Appeal from the Iowa District Court for Black Hawk County, Linda M. Fangman, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (8 pages)

            LC Dewayne Johnson Jr. appeals his conviction for possession of a controlled substance, third offense, claiming his right to a trial within ninety days of the trial information was violated.  OPINION HOLDS: We conclude there was no speedy-trial violation under Iowa Rule of Criminal Procedure 2.33(2)(b).  We affirm the district court’s ruling denying Johnson’s motion to dismiss, and we affirm Johnson’s judgment and sentence.

Case No. 18-1897:  State of Iowa v. Monica Marie Sandoval

Filed Apr 01, 2020

View Opinion No. 18-1897

            Appeal from the Iowa District Court for Polk County, James D. Birkenholz, District Associate Judge.  PROBATION REVOCATION REVERSED, SENTENCE VACATED, AND CASE REMANDED.  Heard by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  (6 pages)

            Monica Sandoval challenges the imposition of judgment and sentence on her offense of fourth-degree theft, claiming the district court contravened Iowa Code section 908.11 (2017) by imposing a jail sentence for contempt and revoking her deferred judgment based on the same probation violation.  OPINION HOLDS: Because under these circumstances the original probation violation cannot result in both a contempt punishment and revocation of her deferred judgment, we reverse the revocation of Sandoval’s deferred judgment, vacate the imposition of sentence, and remand for further proceedings consistent with this opinion.

Case No. 18-1965:  State of Iowa v. Matthew Douglas Harbour

Filed Apr 01, 2020

View Opinion No. 18-1965

            Appeal from the Iowa District Court for Story County, Steven P. Van Marel, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (7 pages)

            Matthew Harbour accepted a plea agreement in which the State agreed to dismiss the habitual-offender enhancement of his operating while intoxicated (OWI) third offense eight days before the ruling in Noll v. Iowa Dist. Ct. for Muscatine County, 919 N.W.2d 232, 235 (Iowa 2018), was published.  Harbour challenges the district court’s denial of his motion to sever a theft charge.  Harbour also alleges his trial attorney was remiss in not protesting the plea agreement as invalid.  OPINION HOLDS: Because Harbour pleaded guilty in open court, and acknowledged he was doing so knowingly and voluntarily, Harbour waived his right to appeal the adverse ruling on his motion to sever the theft charge.  Next, because we have no record to verify what advice counsel gave to Harbour or that counsel anticipated Noll, we cannot decide Harbour’s ineffective-assistance claim on direct appeal.

Case No. 18-1986:  D'Angelo Marquis Goods v. State of Iowa

Filed Apr 01, 2020

View Opinion No. 18-1986

            Appeal from the Iowa District Court for Mills County, Richard H. Davidson, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  (12 pages)

            D’Angelo Goods appeals the denial of his application for postconviction relief (PCR).  Goods claims both his trial counsel and PCR counsel provided ineffective assistance and makes a reasonable-ability-to-pay claim relating to a restitution order.  OPINION HOLDS: We conclude Goods has not established his trial or PCR counsel provided ineffective assistance.  The restitution claim is not properly brought in this appeal.  We affirm.

Case No. 18-1989:  State of Iowa v. Larry Wiggins, Jr.

Filed Apr 01, 2020

View Opinion No. 18-1989

            Appeal from the Iowa District Court for Scott County, John Telleen, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Mullins, J.  (11 pages)

            Larry Wiggins Jr. appeals his conviction of possession of marijuana with intent to deliver.  He argues his attorney was ineffective in failing to challenge the sufficiency of the evidence supporting his conviction and failing to request a jury instruction concerning accommodation with a special interrogatory concerning quantity.  He also argues the court erred in denying his motion for mistrial during jury selection.  OPINION HOLDS: Having found no abuse of discretion in the court’s denial of Wiggins’s mistrial motion and counsel was not ineffective as alleged, we affirm Wiggins’s conviction.

Case No. 18-2055:  Huffey v. Mail Contractors of America, Inc.

Filed Apr 01, 2020

View Opinion No. 18-2055

            Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J.  (11 pages)

            Marten Huffey sought compensation from his employer for his work-related injuries.  He also raised a claim against the Second Injury Fund.  After the workers’ compensation commissioner decided the matter, both parties appealed the district court’s judicial review order reversing and remanding Huffey’s claim for benefits back to the worker’s compensation commissioner for further determination.  OPINION HOLDS: Because the Second Injury Fund points to no code provisions that require Huffey to present medical documentation of his 1999 injury and a first injury need not result in an industrial disability to constitute a “loss of use,” we conclude the agency wrongly interpreted the law when assessing the requirements for proof of a valid first loss.  Next, whether Huffey satisfied the third element of a second-injury claim remains to be decided by the commissioner.  Last, we believe a remand is necessary for the agency to evaluate the conflicting expert testimony on the sequela issue and decide whether Huffey’s claim that the March 2011 injury caused permanent and total disability because of a left knee sequela injury under Iowa Code 85.34(2) (2018).

Case No. 18-2077:  Triston Randall Estate v. Quentin Ray Ary Estate

Filed Apr 01, 2020

View Opinion No. 18-2077

      Appeal from the Iowa District Court for Benton County, Lars G. Anderson, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Ahlers, JJ.  Greer, J., takes no part.  Opinion by Doyle, J.  (6 pages)

            Parties to a wrongful death lawsuit appeal the order granting a new trial on damages.  OPINION HOLDS: Because there is a reasonable probability that juror misconduct influenced the verdict relating to damages, the trial court acted within its discretion in granting a new trial on that issue.  But there is no basis for finding the award itself was inadequate, so an order for additur is unwarranted. 

Case No. 18-2203:  State of Iowa v. Elmer Scheckel

Filed Apr 01, 2020

View Opinion No. 18-2203

            Appeal from the Iowa District Court for Fayette County, Richard D. Stochl, Judge.  CONVICTION AFFIRMED AND REMANDED.  Considered by Bower, C.J., Ahlers, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (6 pages)

            Elmer Scheckel appeals from his Alford plea to third-degree fraudulent practice.  OPINION HOLDS: Counsel was not ineffective for allowing Scheckel to enter a plea because sufficient evidence supported the charge.  We remand for entry of a nunc pro tunc order to correct a scrivener’s error in the judgment entry.

Case No. 19-0043:  In re the Marriage of Sullins

Filed Apr 01, 2020

View Opinion No. 19-0043

            Appeal from the Iowa District Court for Polk County, David Porter, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.  Opinion by Vaitheswaran, P.J.  (5 pages)

            Ray Sullins appeals the district court’s order granting Donna Sullins’ pre-answer motion to dismiss his petition to vacate a district court order denying his motion for new trial.  OPINION HOLDS: We affirm.

Case No. 19-0074:  State of Iowa v. Shawnette Carmale Courts

Filed Apr 01, 2020

View Opinion No. 19-0074

            Appeal from the Iowa District Court for Woodbury County, John C. Nelson, District Associate Judge.  CONVICTION AFFIRMED; SENTENCE VACATED IN PART AND REMANDED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J. (8 pages)

Shawnette Courts appeals her conviction and sentence for operating while intoxicated, second offense, following a bench trial on the stipulated evidence.  Courts maintains the district court abused its discretion in finding there was not good cause to extend the deadline to allow her to file a motion to suppress more than seventy-five days after the deadline and argues the court’s order of restitution violates the procedure outlined in State v. Albright, 925 N.W.2d 144, 162 (Iowa 2019).  OPINION HOLDS: The district court did not abuse its discretion in refusing to find good cause for delay some seventy-five days after the deadline for a motion to suppress had passed.  However, we vacate the portion of the sentencing order involving restitution for court costs and correctional fees and remand to the district court for further proceedings consistent with Albright

Case No. 19-0337:  State of Iowa v. Jamison Albert Fisher

Filed Apr 01, 2020

View Opinion No. 19-0337

            Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Tabor, J., takes no part.  Opinion by May, J. (5 pages)

            Jamison Fisher appeals his conviction of theft in the first degree.  He argues the evidence was insufficient to prove one of the State’s alternate theories.  OPINION HOLDS: We find the evidence was sufficient.  So we affirm Fisher’s conviction.

Case No. 19-0342:  State of Iowa v. Tommy Dean Sanders, Jr.

Filed Apr 01, 2020

View Opinion No. 19-0342

            Appeal from the Iowa District Court for Jasper County, Steven J. Holwerda, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Vaitheswaran, P.J.  (8 pages)

            A jury found Tommy Dean Sanders, Jr. guilty of third-degree burglary and possession of contraband on or in the grounds of a correctional facility.  Sanders contends (1) the evidence was insufficient to support the findings of guilt and (2) the district court erred in denying his motion to dismiss the possession-of-contraband charge.  OPINION HOLDS: We affirm Sanders’ judgment and sentence for third-degree burglary and possession of contraband on or in the grounds of a correctional facility.

Case No. 19-0445:  State of Iowa v. Clint M. Braun

Filed Apr 01, 2020

View Opinion No. 19-0445

            Appeal from the Iowa District Court for Hamilton County, Paul B. Ahlers, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Ahlers, J., takes no part.  Opinion by Doyle, J.  (4 pages)

            Clint Braun appeals after pleading guilty to one count of forgery, claiming his counsel was ineffective by failing to object to the prosecutor’s alleged breach of the plea agreement.  OPINION HOLDS: Braun has failed to show his counsel breached an essential duty by failing to object.  The record does not show the prosecutor breached the plea agreement by implying a material reservation, as Braun alleges. 

Case No. 19-0491:  GreatAmerica Financial Services Corporation

Filed Apr 01, 2020

View Opinion No. 19-0491

            Appeal from the Iowa District Court for Linn County, Lars G. Anderson, Judge.  REVERSED AND REMANDED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  Dissent by Greer, J.  (21 pages)

            GreatAmerica seeks to enforce a “hell or high water” clause against an entity, Natalya Rodionova Medical Care, P.C. (NRMC), which has submitted evidence the signature on the financing contract is a forgery and that it did not accept or ratify the contract.  OPINION HOLDS: Viewing the record in the light most favorable to NRMC, the district court erred in finding GreatAmerica proved ratification as a matter of law.  There are genuine issues of material fact concerning ratification that preclude summary judgment.  DISSENT ASSERTS: Based on the undisputed facts, I believe the district court correctly granted summary judgment against NRMP.  I would affirm the summary judgment ruling and enter judgment accordingly.

Case No. 19-0511:  Rachel Lovan v. Broadlawns Medical Center and Safety National Casualty Corporation (EMC Risk Services, LLC-TPA)

Filed Apr 01, 2020

View Opinion No. 19-0511

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  REVERSED.  Heard by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J.  (6 pages)

            The appellants appeal the judicial-review ruling of the district court.  They argue the Iowa Workers’ Compensation Commissioner properly denied Rachel Lovan’s application for alternate medical care and the court erred in reversing that decision.  OPINION HOLDS: We find the record on appeal is insufficient for us to review the agency decision, and we reverse the district court’s ruling.

Case No. 19-0551:  State of Iowa v. Christopher Lee Roby Jr.

Filed Apr 01, 2020

View Opinion No. 19-0551

            Appeal from the Iowa District Court for Black Hawk County, Alan T. Heavens and Kellyann M. Lekar, Judges.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J.  (14 pages)

            Christopher Roby appeals from his convictions and sentences for sexual abuse in the third degree, possession of marijuana with intent to deliver, and eluding.  Roby argues his counsel was ineffective by failing to challenge his arrest, bail, and guilty pleas.  OPINION HOLDS: We find all of Roby’s arguments without merit and affirm.

Case No. 19-0607:  T.D. v. J.P.

Filed Apr 01, 2020

View Opinion No. 19-0607

            Appeal from the Iowa District Court for Boone County, James A. McGlynn, Judge.  AFFIRMED. Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J.  (6 pages)

 

            J.P. appeals from the district court decision to impose a civil protective order between himself and T.D. under Iowa Code section 236A.3 (2019).  He contends the evidence at the hearing did not support her petition.  OPINION HOLDS: On our de novo review of the testimony and giving due consideration to the district court’s in-person assessment of the disputed testimony, we affirm the ruling. 

Case No. 19-0622:  State of Iowa v. Desiree K. Trent

Filed Apr 01, 2020

View Opinion No. 19-0622

            Appeal from the Iowa District Court for Lee (South) County, John M. Wright, Judge.  SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J. (7 pages)

            Desiree Trent pled guilty to one count of forgery.  She was sentenced to a term of incarceration not to exceed five years and ordered to pay $1569.08 in victim restitution.  On appeal, Trent argues the district court considered an improper factor in deciding her sentence and erred in imposing the amount of victim restitution she owed.  OPINION HOLDS: The court did not abuse its discretion by considering improper factors in imposing Trent’s sentence.  However, the court ordered $1547.91 of victim restitution not causally linked to Trent’s established criminal act; so we vacate the order of victim restitution and remand for the district court to enter an order consistent with this opinion.

Case No. 19-0652:  Troy Kleppe v. Fort Dodge Police Department and City of Fort Dodge, Iowa

Filed Apr 01, 2020

View Opinion No. 19-0652

            Appeal from the Iowa District Court for Webster County, Adria Kester, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J.  (16 pages)

            Troy Kleppe, a former public employee, appeals the grant of summary judgment to the Fort Dodge Police Department and the City of Fort Dodge (collectively, the “City”) on a wage claim under Iowa Code chapter 91A (2018).  Kleppe claims he is owed overtime pay for work as a police canine handler and trainer.  The district court found Kleppe failed to exhaust the administrative remedies under the public employees’ collective bargaining agreement (CBA).  OPINION HOLDS: On our review, we find no error in the district court’s determination there were no issues of material fact and the City was entitled to judgment as a matter of law.  Kleppe was obligated to exhaust the administrative procedures offered in the CBA and failed to do so.  We affirm.

Case No. 19-0679:  In re the Marriage of Rife

Filed Apr 01, 2020

View Opinion No. 19-0679

            Appeal from the Iowa District Court for Dickinson County, Nancy L. Whittenburg, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (11 pages)

            Blake Rife appeals the district court’s order overruling his petition for modification of certain provisions of his modified decree of dissolution.  OPINION HOLDS: Upon our de novo review of the record, we agree with the district court that Blake failed to prove there was a material change in circumstances to warrant modification of the parties’ previously modified visitation schedule.  We also find the district court’s determination of Blake’s annual gross income was within the range of permissible evidence presented at trial, and we will therefore not disturb it.  We find no abuse in discretion by the district court’s award of trial attorney fees to Jennifer.  Finally, we find Blake should pay to Jennifer a $5000 award of appellate attorney’s fees.  We affirm on all issues.

Case No. 19-0818:  Debra True v. Heritage Care and Rehabilitation and Cannon Cochran Management Services, Inc.

Filed Apr 01, 2020

View Opinion No. 19-0818

            Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  (10 pages)

            Debra True appeals the workers’ compensation commissioner’s interpretation of an administrative rule and finding she waived her claim to penalty benefits under the workers’ compensation act.  OPINION HOLDS: We find True waived some of her penalty-benefit claims by failing to follow procedures as explained in an administrative rule, and we affirm in part the commissioner’s ruling.  However, because some of the claims may have arisen after the initial hearing and ruling, we reverse and remand for the commissioner to consider her post-hearing penalty-benefit claim.

Case No. 19-0822:  State of Iowa v. Chad Lindsay

Filed Apr 01, 2020

View Opinion No. 19-0822

            Appeal from the Iowa District Court for Dickinson County, Carl J. Petersen, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J. (5 pages)

            Chad Lindsay appeals the restitution order entered after he pled guilty to one count of failure to obtain workers’ compensation liability insurance.  OPINION HOLDS:  Because Lindsay’s criminal act supports a civil claim for recovery, the court properly assessed restitution to compensate the victim for pecuniary damages arising from that criminal act.  Lindsay’s claim that his counsel was ineffective in failing to request a setoff for a workers’ compensation award fails because counsel had no duty to request a setoff for a workers’ compensation award when Lindsay had made no payments on the award.

Case No. 19-0933:  Jamie Lynn Sinn v. Rusty James Duff

Filed Apr 01, 2020

View Opinion No. 19-0933

            Appeal from the Iowa District Court for Jefferson County, Myron Gookin, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J.  (5 pages)

            Jamie Sinn and Rusty Duff are the never-married parents of A.D. and L.D.  In a 2014 stipulated decree, the court gave the parents joint legal custody of the children, placed the children in Jamie’s physical care, and gave Rusty reasonable visitation with the children.  Following Rusty’s 2018 petition to modify the decree, the district court modified physical care, placing the children in Rusty’s care.  On appeal, Jamie challenges the district court’s ruling, arguing the modification of physical care is not in A.D.’s and L.D.’s best interests.  Alternatively, she contends she should be awarded more visitation time.  She also requests $2000 in appellate attorney fees.  OPINION HOLDS: We affirm the district court’s modification and decline to award Jamie appellate attorney fees.

Case No. 19-1124:  State of Iowa v. Toby Ryan Richards

Filed Apr 01, 2020

View Opinion No. 19-1124

            Appeal from the Iowa District Court for Scott County, Joel W. Barrows, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J.  (5 pages)

            Toby Richards appeals the sentences imposed following convictions of domestic abuse assault, third or subsequent offense, and domestic abuse assault by strangulation.  He argues the sentencing court improperly used a previously prepared presentence investigation report (PSI) and alternatively argues his counsel was ineffective in failing to object to use of the PSI.  He also argues the court erred in ordering the sentences imposed run consecutively to sentences resulting from prior domestic-abuse convictions.  OPINION HOLDS: Our review of the record reveals the court did not rely on information in the PSI that did not result in conviction in imposing the sentence.  The court’s colloquy shows the court considered the appropriate factors.  Richards cannot show prejudice, so his ineffective-assistance claim fails.

Case No. 19-1444:  In the Interest of C.S., Minor Child

Filed Apr 01, 2020

View Opinion No. 19-1444

            Appeal from the Iowa District Court for Clinton County, Phillip J. Tabor, District Associate Judge.  REVERSED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Tabor, J., takes no part.  Opinion by May, J.  (4 pages)

            A father appeals the juvenile court’s termination of his parental rights.  OPINION HOLDS: We find insufficient evidence to establish grounds for termination.  So we reverse the juvenile court’s order terminating the father’s parental rights.

Case No. 19-1533:  In the Interest of M.C., Minor Child

Filed Apr 01, 2020

View Opinion No. 19-1533

            Appeal from the Iowa District Court for Polk County, Kimberly Ayotte, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J.  (6 pages)

            A mother, Tiana, appeals the termination of her parental rights to her fourth child, M.C.  She argues the State failed to present clear and convincing evidence to support the statutory basis for terminating her rights.  OPINION HOLDS: Because Tiana refuses to address her substance-abuse issues, is not forthcoming about domestic abuse possibilities, refuses to engage in individual therapy and has not cooperated with DHS workers, we find that Tiana is unwilling to respond to services.  Also, after viewing the record as a whole, we find clear and convincing evidence that more time for rehabilitation would not fix the problems with Tiana’s parenting.

Case No. 19-1595:  In the Interest of C.G., Minor Child

Filed Apr 01, 2020

View Opinion No. 19-1595

            Appeal from the Iowa District Court for Polk County, Romonda Belcher, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J.  (6 pages)

            A mother appeals the termination of her parental rights to her child, born in 2013.  The mother contests termination pursuant to Iowa Code section 232.116(1)(l) (2019) and argues termination is not in the child’s best interest.  OPINION HOLDS: The statutory grounds for termination are met pursuant to section 232.116(1)(f), which the mother did not contest.  Furthermore, we find termination is in the child’s best interest and no permissive exceptions to termination apply.

Case No. 19-1654:  In the Interest of B.S. and E.C., Minor Children

Filed Apr 01, 2020

View Opinion No. 19-1654

            Appeal from the Iowa District Court for Polk County, Romonda Belcher, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J.  (8 pages)

            A mother appeals the termination of her parental rights to her two children, born in 2016 and 2017.  She challenges the sufficiency of the evidence supporting the statutory grounds for termination cited by the juvenile court, argues termination is not in the children’s best interests because of the closeness of the parent-child bond, and maintains she should have been granted additional time to work toward reunification.  OPINION HOLDS: We affirm the termination of the mother’s parental rights. 

Case No. 19-1655:  In re the Marriage of Pettus

Filed Apr 01, 2020

View Opinion No. 19-1655

            Appeal from the Iowa District Court for O'Brien County, Don E. Courtney, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by May, J.  (6 pages)

            Kimberlin Pettus appeals from the decree dissolving her marriage.  She claims the district court erred in awarding the parties joint physical care of their children, determining child support, and declining to award her attorney fees.  Kimberlin also seeks appellate attorney fees.  OPINION HOLDS: A joint physical care arrangement is in the children’s best interests.  The district court’s decision determining child support or declining to award Kimberlin attorney fees was not inequitable.  We decline to award her appellate attorney fees.

Case No. 19-1867:  In the Interest of C.S., N.E., A.A., and N.J., Minor Children

Filed Apr 01, 2020

View Opinion No. 19-1867

            Appeal from the Iowa District Court for Woodbury County, Stephanie Forker Parry, District Associate Judge.  AFFIRMED.  Considered by Mullins, P.J., Ahlers, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (6 pages)

            A mother appeals the termination of her parental rights to four children, contending the State failed to prove the grounds for termination cited by the juvenile court.  OPINION HOLDS: We affirm the decision of the juvenile court to terminate the mother’s parental rights.

Case No. 19-2012:  In the Interest of R.H., V.H., and J.H., Minor Children

Filed Apr 01, 2020

View Opinion No. 19-2012

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., Greer, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (5 pages)

            A mother appeals the juvenile court decision terminating her parental rights.  OPINION HOLDS:  The mother physically abused the children and she does not have the ability to meet their special needs.  We conclude termination of her parental rights is in the children’s best interests.  Also, there is not clear and convincing evidence to show termination of the mother’s rights would be detrimental to the children based on the closeness of the parent-child relationship.  We affirm the decision of the juvenile court.

Case No. 19-2056:  In the Interest of C.M., Z.F., G.F., and S.T., Minor Children

Filed Apr 01, 2020

View Opinion No. 19-2056

            Appeal from the Iowa District Court for Winneshiek County, Linnea M.N. Nicol, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J.  (8 pages)

            A mother in prison for physically abusing one of her four children appeals an order terminating her parental rights to those four children.  OPINION HOLDS: Finding no merit to the claims of error, we affirm the juvenile court.

Case No. 19-2064:  In the Interest of R.C., Minor Child

Filed Apr 01, 2020

View Opinion No. 19-2064

            Appeal from the Iowa District Court for Cherokee County, Mary L. Timko, Associate Juvenile Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., May, J., and Potterfield, S.J.  Opinion by Potterfield, S.J.  Partial Dissent by May, J.  (10 pages)

            Pursuant to a 2017 permanency order, R.C. is placed in the custody of his father and resides in a residential care facility for children with special needs.  R.C.’s mother filed motions requesting paternity testing on R.C. and asking for expanded visitation with him.  The juvenile court concluded neither request was in R.C.’s best interests, denied the mother’s motions, and otherwise affirmed the permanency order on review.  OPINION HOLDS: The juvenile court should have ordered paternity testing, so we reverse and remand on this issue.  We otherwise affirm the juvenile court order on permanency review, including the denial of the mother’s request for expanded visitation.  R.C. remains in the custody of the father.  PARTIAL DISSENT ASSERTS: Because the mother cited no statute in support of her motion for paternity testing, I would not reverse the denial of her motion on statutory grounds.

Case No. 19-2065:  In the Interest of G.D. and O.D., Minor Children

Filed Apr 01, 2020

View Opinion No. 19-2065

            Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge.  AFFIRMED.  Considered by Bower, C.J., Schumacher, J., and Scott, S.J.  Opinion by Scott, S.J.  (8 pages)

            A father appeals the adjudication of his two children as children in need of assistance (CINA).  He also challenges the denial of his request for visitation.  OPINION HOLDS: We affirm the CINA adjudications and the court’s denial of the father’s initial motion for visitation.  We find no error in the court’s decision to reconsider the issue of visitation at a subsequent review hearing.

Case No. 19-2066:  In the Interest of R.C., Minor Child

Filed Apr 01, 2020

View Opinion No. 19-2066

            Appeal from the Iowa District Court for Scott County, Korie Shippee, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., Ahlers, J., and Vogel, S.J.  Opinion by Vogel, S.J.  (4 pages)

            The father of R.C. appeals the termination of his parental rights.  OPINION HOLDS: Because the father has had little to no relationship with R.C. and has been incarcerated most of R.C.’s life, we affirm the juvenile court’s order.

Case No. 19-2109:  In the Interest of W.E. and D.J., Minor Children

Filed Apr 01, 2020

View Opinion No. 19-2109

            Appeal from the Iowa District Court for Sioux County, Daniel P. Vakulskas, District Associate Judge.  AFFIRMED ON MOTHER’S APPEAL; REVERSED AND REMANDED ON FATHER’S APPEAL.  Considered by Vaitheswaran, P.J., May, J., and Potterfield, S.J.  Opinion by Potterfield, S.J.  (10 pages)

            The mother and father separately appeal the termination of their parental rights to their children, W.E. and D.J.  The juvenile court terminated both parents’ rights pursuant to Iowa Code section 232.116(1)(d), (e), and (f) (2019).  The father argues his rights were violated because he was not allowed to participate in most of the termination hearing.  Additionally, he claims the juvenile court erred in refusing to admit one of his proposed exhibits, challenges the statutory grounds for termination, and argues termination is not in the children’s best interests.  The mother challenges the statutory grounds for termination, whether termination is in the children’s best interests, and the juvenile court’s refusal to apply a permissive factor to save the parent-child relationship.  Additionally, she argues a six-month extension to achieve reunification is warranted.  OPINION HOLDS: The father’s due process rights were violated when he was not allowed to fully participate in the termination proceedings.  We reverse the termination of the father’s parental rights and remand the case to the juvenile court for additional expedited proceedings in accordance with this opinion.  But we affirm the termination of the mother’s parental rights, as statutory grounds for termination were met, termination is in the children’s best interests, no permissive factor weighs against termination, and additional time for reunification is not warranted here.

Case No. 19-2139:  In the Interest of J.G., Minor Child

Filed Apr 01, 2020

View Opinion No. 19-2139

            Appeal from the Iowa District Court for Scott County, Christine Dalton, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., Doyle, J., and Vogel, S.J.  Opinion by Vogel, S.J.  (9 pages)

            The mother and father separately appeal the termination of their parental rights to J.G.  While only the mother asserts the State failed to prove the statutory grounds for termination, both parents assert termination is not in the child’s best interests and the Iowa Department of Human Services failed to make reasonable efforts for reunification.  The father also requested additional time for reunification.  OPINION HOLDS: We affirm the termination of the parental rights of both parents.

Case No. 20-0036:  In the Interest of I.J. and M.J., Minor Children

Filed Apr 01, 2020

View Opinion No. 20-0036

            Appeal from the Iowa District Court for Clinton County, Mark Fowler, Judge.  AFFIRMED.  Considered by Greer, P.J., Ahlers, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (8 pages)

            A father appeals the termination of his parental rights.  OPINION HOLDS: The children could not be returned to the father’s care, satisfying the statutory grounds for termination.  Termination is in the children’s best interests, and the bond between the father and children is not strong enough to preclude termination.

Case No. 20-0056:  In the Interest of L.N., Minor Child

Filed Apr 01, 2020

View Opinion No. 20-0056

            Appeal from the Iowa District Court for Pottawattamie County, Eric J. Nelson, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., Schumacher, J., and Blane, S.J.  Opinion by Blane, S.J.  (7 pages)

            A father appeals the termination of his parental rights to a one-year-old child.  OPINION HOLDS: The State showed by clear and convincing evidence the statutory grounds for termination where the parent fails to maintain significant and meaningful contact with the child.  We further determine it was in the child’s best interests to terminate the father’s parental rights and move toward a permanent home.  Finally, the father waived any argument the State failed to make reasonable efforts to reunite him with the child.  We affirm the termination. 

Case No. 20-0083:  In the Interest of E.L., Minor Child

Filed Apr 01, 2020

View Opinion No. 20-0083

            Appeal from the Iowa District Court for Wapello County, William Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J.  (7 pages)

            A mother appeals the termination of her parental rights to her minor child, arguing the State failed to prove grounds for termination and termination was not in the child’s best interest.  OPINION HOLDS: On our de novo review, we conclude the State proved grounds for termination under Iowa Code section 232.116(1)(f) (2019) and that termination was in the child’s best interest.  We affirm the juvenile court termination order.

Case No. 20-0087:  In the Interest of A.C.-D. and E.C.-D., Minor Children

Filed Apr 01, 2020

View Opinion No. 20-0087

            Appeal from the Iowa District Court for Woodbury County, Stephanie Forker Parry, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            A mother appeals the termination of her parental rights to two children, contending the State failed to prove the grounds for termination cited by the district court; termination was not in the children’s best interests; and the district court should have placed the children in a guardianship in lieu of terminating her parental rights.  OPINION HOLDS: We affirm the termination of the mother’s parental rights to the children.

Case No. 20-0140:  In the Interest of E.C. and E.C., Minor Children

Filed Apr 01, 2020

View Opinion No. 20-0140

            Appeal from the Iowa District Court for Marshall County, Paul G. Crawford, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by May, J.  (4 pages)

            A father appeals the juvenile court’s termination of his parental rights.  OPINION HOLDS: We conclude termination is appropriate under Iowa law and consistent with the children’s best interests.

Case No. 20-0146:  In the Interest of K.D., Minor Child

Filed Apr 01, 2020

View Opinion No. 20-0146

            Appeal from the Iowa District Court for Linn County, Cynthia S. Finley, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            A mother appeals the termination of her parental rights to a child, contending: (1) the State failed to prove the ground for termination cited by the district court; (2) termination was not in the child’s best interests; (3) the district court should not have terminated her parental rights given the bond she shared with the child; and (4) she should have been afforded additional time to work toward reunification.  OPINION HOLDS: We affirm.

Case No. 20-0153:  In the Interest of R.W., Minor Child

Filed Apr 01, 2020

View Opinion No. 20-0153

            Appeal from the Iowa District Court for Madison County, Brendan Greiner, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (6 pages)

            A mother and a father separately appeal from an order terminating their parental rights.  OPINION HOLDS: Clear and convincing evidence shows the child could not be returned safely to either parent’s care at the time of the termination hearing.  Because the continued offer and receipt of services for an additional six months will not remedy the concerns that brought the child to the court’s attention, an extension of time is unwarranted.  Considering the child’s safety and need for a permanent home, termination is in the child’s best interests.  

Case No. 20-0168:  In the Interest of S.E., Minor Child

Filed Apr 01, 2020

View Opinion No. 20-0168

            Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J.  (8 pages)

            A mother and father separately appeal the termination of their parental rights to a two-year-old child.  They argue the State failed to prove the statutory grounds for termination and that termination is detrimental to their child due to the parent-child bond.  OPINION HOLDS:  The State showed by clear and convincing evidence the child cannot be returned to the home of either parent at the present time, proving the statutory ground for termination.  And the parent-child bond is not strong enough to result in disadvantage to the child following termination.  We affirm the termination as to both appeals. 

Case No. 20-0184:  In the Interest of K.R., Minor Child

Filed Apr 01, 2020

View Opinion No. 20-0184

            Appeal from the Iowa District Court for Warren County, Kevin Parker, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J.  (4 pages)

            A mother appeals a permanency order transferring guardianship and custody of her child.  OPINION HOLDS: We affirm the juvenile court’s permanency order.

Case No. 20-0223:  In the Interest of M.M., O.M., M.M., J.M., and C.M., Minor Children

Filed Apr 01, 2020

View Opinion No. 20-0223

            Appeal from the Iowa District Court for Allamakee County, Linnea M.N. Nicol, District Associate Judge. AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  (7 pages)

            A father appeals the adjudication of his children as children in need of assistance, contending the State did not prove the adjudicatory grounds by clear and convincing evidence.  OPINION HOLDS: Because we find clear and convincing evidence to support the adjudication on each ground found by the juvenile court, we affirm.

Case No. 20-0239:  In the Interest of N.B., Minor Child

Filed Apr 01, 2020

View Opinion No. 20-0239

            Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (5 pages)

            A mother and a father separately appeal the termination of their parental rights to their child.  OPINION HOLDS: I. Clear and convincing evidence shows that returning the child to the mother’s care will expose the child to a harm warranting a new child-in-need-of-assistance adjudication.  The grounds for terminating the mother’s parental rights under Iowa Code section 232.116(1)(h) (2019) have been met.  The child is not so closely bonded with the mother that termination of her parental rights would be detrimental to the child.  Because termination is in the child’s best interests, we affirm the termination of the mother’s parental rights.  II. We deny the father’s request to delay permanency six months because the issues that led to the child’s removal would continue to exist at the end of the six months.  We affirm the termination of the father’s parental rights.

Case No. 20-0269:  In the Interest of M.B., Minor Child

Filed Apr 01, 2020

View Opinion No. 20-0269

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J.  (4 pages)

            A father appeals a juvenile court review order asking the department of human services to commence a child protective assessment investigating him for possible child abuse of one daughter, after the daughter raised concerns about his recent actions to the court.  He also challenges the juvenile court’s suspension of his visitation with the child until completion of the investigation.  OPINION HOLDS: Because the father did not object to the order on the child protective assessment below, we do not address it on appeal.  We also find the visitation suspension is moot because the father subsequently was arrested and incarcerated and was evicted from his apartment, requiring a new assessment of his visitation.  We affirm. 

Case No. 18-1293:  State of Iowa v. Ernest Toby Gaston

Filed Mar 18, 2020

View Opinion No. 18-1293

            Appeal from the Iowa District Court for Cedar County, Mark Lawson, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (7 pages)

            Ernest Gaston appeals his convictions for eluding and possession of marijuana, third or subsequent offense.  OPINION HOLDS: Gaston claims he was not competent to plead guilty to the offenses.  We conclude the evidence does not show the district court should have scheduled a competency hearing.  For this reason, we find no error in the acceptance of the pleas.  We affirm Gaston’s convictions.

Case No. 18-1325:  In the Matter of A.R., Alleged to Be Seriously Mentally Impaired

Filed Mar 18, 2020

View Opinion No. 18-1325

            Appeal from the Iowa District Court for Polk County, Carla T. Schemmel, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  (4 pages)

            A.R. appeals the district court’s finding of serious mental impairment.  A.R. challenges the sufficiency of the evidence to establish she posed a risk of emotional or physical danger to herself or others.  OPINION HOLDS: The district court found that if not committed A.R. was likely to inflict serious emotional injury on members of her family who lacked reasonable opportunity to avoid contact with her.  There is substantial evidence in the record to support the district court’s finding, and we therefore affirm. 

Case No. 18-1459:  State of Iowa v. Ronald Wayne Downs II

Filed Mar 18, 2020

View Opinion No. 18-1459

            Appeal from the Iowa District Court for Scott County, Cheryl E. Traum, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (6 pages)

            Ronald Downs seeks to vacate his conviction for being voluntarily absent from custody in violation of Iowa Code section 719.4(3) (2018).  Downs pleaded guilty and waived reporting of the combined plea and sentencing hearing.  On appeal, Downs alleges trial counsel was ineffective because he did not inform him of a possible twenty-five percent collection fee on delinquent court debt, did not provide adequate information on the statutory surcharges, misadvised him of the penal consequences of his plea, and did not adequately investigate the State’s evidence.  OPINION HOLDS: On the first and second claims, we find the record adequate to reject Downs’s claims of ineffective assistance.  Because the record requires more development to resolve Downs’s third and fourth claims, we preserve them for a possible postconviction-relief action. 

Case No. 18-1487:  State of Iowa v. Ethan Landon Davis

Filed Mar 18, 2020

View Opinion No. 18-1487

            Appeal from the Iowa District Court for Wayne County, Patrick W. Greenwood, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J. (10 pages)

            Ethan Davis appeals from his convictions of assault causing bodily injury and child endangerment.  Davis challenges the sufficiency of the evidence to support his child-endangerment conviction.  Specifically, he challenges whether the evidence establishes he “knowingly act[ed]” and whether those actions created a “substantial risk” to the child’s physical, mental, or emotional health and safety.  Davis also maintains he received ineffective assistance from trial counsel when counsel did not challenge the jury instruction on “substantial risk.”  OPINION HOLDS: Because substantial evidence supports Davis’s conviction of child endangerment and his claim of ineffective assistance fails, we affirm.

Case No. 18-1492:  State of Iowa v. Chad Allen Bonner

Filed Mar 18, 2020

View Opinion No. 18-1492

            Appeal from the Iowa District Court for Winnebago County, Gregg R. Rosenbladt, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (12 pages)

            Chad Bonner appeals from convictions on two counts of second-degree sexual abuse following a bench trial.  OPINION HOLDS: Viewing the evidence in the light most favorable to the State, we conclude substantial evidence supports Bonner’s second-degree sexual abuse convictions.  We do not find the district court abused its discretion when it excluded Bonner’s proffered evidence or when it overruled Bonner’s motion for new trial based on newly discovered evidence.  We therefore affirm Bonner’s convictions.  We do not address his claim of ineffective assistance of counsel in this direct appeal.

Case No. 18-1500:  State of Iowa v. Timothy D. Smith

Filed Mar 18, 2020

View Opinion No. 18-1500

            Appeal from the Iowa District Court for Cass County, Susan Christensen, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J. (7 pages)

            Timothy Smith appeals his convictions for two counts of second-degree sexual abuse.  He claims he should have been able to challenge the identity of the complaining witness’s abuser by introducing evidence Smith’s son was also charged with sexually abusing the complaining witness.  He also claims he received ineffective assistance of counsel.  OPINION HOLDS: The district court properly excluded evidence that Smith’s son was also charged with sexually abusing the complaining witness.  We preserve Smith’s ineffective-assistance claim for future postconviction-relief proceedings.

Case No. 18-1627:  John Washburne v. State of Iowa

Filed Mar 18, 2020

View Opinion No. 18-1627

            Appeal from the Iowa District Court for Lee (South) County, Michael J. Schilling, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (2 pages)

            John Washburne appeals the summary dismissal of his second application for postconviction relief (PCR).  OPINION HOLDS: The PCR court properly dismissed Washburne’s PCR application.

Case No. 18-1645:  State of Iowa v. Paul A. Garrity

Filed Mar 18, 2020

View Opinion No. 18-1645

            Appeal from the Iowa District Court for Scott County, Stuart P. Werling, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (12 pages)

            The defendant appeals from a sentence imposed following guilty plea proceedings.  OPINION HOLDS: We deny two of the defendant’s ineffective-assistance-of-counsel claims and as the record is insufficient for review of the remaining ineffective-assistance-of-counsel claims, we preserve them for a possible future postconviction proceeding.  We reject defendant’s argument that the trial court violated Iowa Rule of Criminal Procedure 2.8 when it added a late-fee provision to the sentencing order, and we find no violation of defendant’s due process rights.

Case No. 18-1733:  State of Iowa v. Christopher A. Puccio

Filed Mar 18, 2020

View Opinion No. 18-1733

            Appeal from the Iowa District Court for Dubuque County, Robert J. Richter, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J. (9 pages)

           

            Christopher Puccio appeals his conviction for attempted burglary.  He contends his trial counsel was ineffective in not asking for three jury instructions: (1) a lesser-included-offense instruction on criminal trespass; (2) an instruction on prior inconsistent witness statements; and (3) an instruction on how to evaluate eyewitness identification testimony.  OPINION HOLDS: We reject the first and second ineffective-assistance claims because those instructions did not apply to Puccio’s prosecution.  As to the third claim, better development of the record is needed to decide whether counsel was ineffective for not ensuring the jury had information about the fallibility of eyewitness identification.  So we preserve that claim for Puccio to raise if he seeks postconviction relief.

Case No. 18-1755:  State of Iowa v. Lorenzo Alexander

Filed Mar 18, 2020

View Opinion No. 18-1755

            Appeal from the Iowa District Court for Black Hawk County, Brook Jacobsen, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (5 pages)

            Lorenzo Alexander appeals his conviction and sentence after he pled guilty to domestic abuse assault, second offense.  OPINION HOLDS: Alexander waived all claims of error by the district court.  We reject one of Alexander’s ineffective-assistance claims and preserve the rest. 

Case No. 18-1777:  State of Iowa v. Joshua Kelly Uranga

Filed Mar 18, 2020

View Opinion No. 18-1777

            Appeal from the Iowa District Court for Boone County, Stephen A. Owen, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Vaitheswaran, P.J.  Special concurrence by Doyle, J.  (11 pages)

            Joshua Uranga appeals his conviction for failure to comply with sex offender registration requirements, contending the district court abused its discretion in denying his motions for judgment of acquittal and for new trial “where exculpatory evidence was produced after trial.”  OPINION HOLDS: We affirm Uranga’s judgment and sentence for failure to comply with the sex offender registry.  SPECIAL CONCURRENCE ASSERTS: Although I agree with the majority that Uranga’s admissions at trial established the elements of the crime, and that providing the jury with the sheriff’s courtesy letter probably would not have changed the result, it seems patently unfair that Uranga’s compliance with a directive of the county’s highest law enforcement officer played no part in the prosecution and disposition of this case.

Case No. 18-1782:  State of Iowa v. Ricky Lee Mahnesmith

Filed Mar 18, 2020

View Opinion No. 18-1782

            Appeal from the Iowa District Court for Cerro Gordo County, Adam D. Sauer, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Ricky Mahnesmith appeals following his guilty pleas to possession of methamphetamine (third offense) and forgery.  Mahnesmith argues (1) the pleas were not voluntary; (2) the district court abused its discretion in “not following the [sentencing] recommendation of the parties” and in failing to “make it clear why the sentences would run consecutively with the sentences in the probation revocation matters”; and (3) defense counsel was ineffective in several respects.  OPINION HOLDS: We affirm Mahnesmith’s judgment and sentence for possession of methamphetamine (third offense) and forgery.   

Case No. 18-1827:  State of Iowa v. Braedon Steven Bowers

Filed Mar 18, 2020

View Opinion No. 18-1827

            Appeal from the Iowa District Court for Cerro Gordo County, Colleen Weiland, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J. (6 pages)

           

            Braedon Bowers appeals his conviction for voluntary manslaughter.  He contends his trial counsel was ineffective for not arguing he was entitled to judgment of acquittal based on justification.  OPINION HOLDS: Because the State presented sufficient evidence to disprove justification, Bowers cannot show prejudice.  We affirm the conviction.

Case No. 18-1864:  State of Iowa v. Harold Lamorn Dudley

Filed Mar 18, 2020

View Opinion No. 18-1864

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR RESENTENCING.  Heard by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Schumacher, J. (11 pages)

            A defendant appeals from convictions related to the murder of his wife.  OPINION HOLDS:  The defendant’s ineffective-assistance-of-counsel claim fails because there is no reasonable probability of a different result had text messages or testimony about the text messages been excluded.  We find the sentencing court properly stated its reasons for imposing consecutive sentences and affirm.  We vacate a portion of the defendant’s sentence and remand for recalculation of restitution in light of Iowa Supreme Court precedent.

Case No. 18-1961:  State of Iowa v. Sean Timothy Hunter

Filed Mar 18, 2020

View Opinion No. 18-1961

            Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.  REVERSED AND REMANDED IN BOTH CASES.  Heard by Bower, C.J., and Greer and Ahlers, JJ.  Tabor, J., takes no part.  Opinion by Ahlers, J.  (11 pages)

            In this consolidated appeal, Sean Hunter appeals the district court’s denial of his motion to suppress evidence obtained from his cell phone and the revocation of his probation in a separate criminal case.  On appeal, Hunter argues the seizure of both his person and his cell phone away from his residence and the later search of his cell phone violated his rights under the Fourth Amendment to the United States Constitution and article I, section 8 of the Iowa Constitution.  He also argues there was insufficient admissible evidence to support his conviction.  Finally, he argues the revocation of his probation and sentence in the separate criminal case must be vacated because the revocation was based on his conviction.  OPINION HOLDS: We conclude the seizure of Hunter and his cell phone was not constitutionally permitted and the subsequent warrant authorizing search of the phone was fruit of the unlawful seizure.  Therefore, the contents of the cell phone obtained via the subsequent search warrant should have been suppressed and not admitted as evidence at trial.  Due to the improperly obtained evidence being admitted at trial, the conviction and sentence imposed are hereby vacated and the case is remanded for a new trial without admission of the improperly-obtained evidence.  Because the revocation of his probation was based on his vacated conviction, we vacate the revocation of his probation and the sentence imposed and remand that case for further proceedings.

Case No. 18-2101:  Heather Ceaser and Brett Zach v. Marshalltown Medical and Surgical Center; Central Iowa Healthcare; and Central Iowa Healthcare f/k/a Marshalltown Medical and Surgical Center

Filed Mar 18, 2020

View Opinion No. 18-2101

            Appeal from the Iowa District Court for Tama County, Mary E. Chicchelly, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (7 pages)

            The plaintiffs appeal a defense verdict on their claim of medical malpractice.  OPINION HOLDS: The trial court acted within its discretion in ruling evidence the plaintiffs sought to admit is inadmissible hearsay.  The plaintiffs failed to provide a foundation to admit evidence of an alleged statement by an employee of the defendant.  And a handwritten note in medical records documenting one plaintiff’s repetition of that statement is double hearsay, which the plaintiffs failed to show falls under an exception to the hearsay rule. 

Case No. 18-2131:  Mary Jane Buck; Lois Erbstein; Donald and Lorraine Shirk; and Maureen D. Wilson, Individually and as Trustee of the Maureen D. Wilson Revocable Trust v. The Reserve, a Nonprofit Corporation d/b/a The Reserve on Walnut Creek

Filed Mar 18, 2020

View Opinion No. 18-2131

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  REVERSED ON APPEAL; AFFIRMED ON CROSS-APPEAL.  Heard by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  (17 pages)

            The Reserve on Walnut Creek (the Reserve) appeals an adverse judgment on the plaintiffs’ claims of breach of fiduciary duty and unconscionable contract; the plaintiffs cross-appeal the dismissal of their claim under the Iowa Uniform Residential Landlord and Tenant Act and their claim of consumer fraud.  OPINION HOLDS: Our supreme court recently decided an almost identical case involving another member of the Reserve, the same legal representatives, and very similar claims.  Albaugh v. The Reserve, 930 N.W.2d 676 (Iowa 2019).  Because we are bound by that ruling, we reverse and remand for dismissal on the Reserve’s appeal.  We affirm the entry of summary judgment on the plaintiffs’ additional claims.

Case No. 18-2159:  State of Iowa v. Jennifer Brandt

Filed Mar 18, 2020

View Opinion No. 18-2159

            Appeal from the Iowa District Court for Buchanan County, Stephanie C. Rattenborg, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (5 pages)

            Jennifer Leigh Brandt appeals her conviction of possession of marijuana, second offense.  OPINION HOLDS: We affirm the denial of Brandt’s motion to suppress the evidence discovered during a search of her purse.  The deputy sheriff had probable cause to search the vehicle for open containers of alcohol, and Brandt’s purse was in the vehicle and large enough to conceal an open container of alcohol. 

Case No. 18-2213:  Bernice Linn and Howard Linn v. North Iowa Anesthesia Associates, P.C., Michael Qualey, M.D., Mercy Health Services d/b/a Mercy Medical Center-North Iowa

Filed Mar 18, 2020

View Opinion No. 18-2213

            Appeal from the Iowa District Court for Cerro Gordo County, Colleen Weiland, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Vaitheswaran, P.J.  (8 pages)

            Bernice and Howard Linn appeal the district court’s denial of their motion for new trial following a jury verdict in favor of North Iowa Anesthesia Associates, P.C., Dr. Michael Qualey, and Mercy Health Services in the Linns’ medical malpractice action.  The Linns argue (1) the jury committed misconduct by failing “to deliberate”; (2) the jury committed misconduct by discussing “the facts, evidence, and witnesses throughout their breaks during the trial”; (3) the district court erred in failing to “continue to remind jurors of their admonition” not to converse with each other; (4) the district court erred in “refus[ing] to poll the jury”; and (5) the district court should have granted their motion for mistrial based on defense counsel’s comments in opening statements.  OPINION HOLDS: We affirm.

Case No. 19-0035:  Walter Hoskins IV. v. State of Iowa

Filed Mar 18, 2020

View Opinion No. 19-0035

            Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (9 pages)

            Walter Hoskins appeals from the summary dismissal of his second application for postconviction relief (PCR).  OPINION HOLDS: Hoskins could not have prevailed on his newly-discovered-evidence claim.  So we affirm the PCR court’s dismissal of Hoskins’s PCR claim.  

Case No. 19-0109:  State of Iowa v. Irvin Johnson, Jr.

Filed Mar 18, 2020

View Opinion No. 19-0109

            Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge.  CONVICTIONS VACATED IN PART AND REMANDED FOR CORRECTION OF ILLEGAL SENTENCE.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J. (10 pages)         

            Irvin Johnson Jr. appeals his convictions for felony eluding enhanced based on marijuana possession.  He argues the district court should have entered judgment only on the greater offense.  The merger question hinges on whether our legislature showed a clear intent to impose cumulative punishments.  OPINION HOLDS: Because we find no such clear legislative intent, we conclude the marijuana possession conviction should merge into the felony.  We remand for correction of Johnson’s illegal sentence. 

Case No. 19-0143:  James Liddiard v. Connie Mikesh

Filed Mar 18, 2020

View Opinion No. 19-0143

            Appeal from the Iowa District Court for Allamakee County, Richard D. Stochl, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (6 pages)

            James Liddiard appeals the district court’s denial of his petition to quiet title.  He argues he proved both adverse possession and acquiescence.  OPINION HOLDS: We find Liddiard has not met his burden for either claim.  We affirm the district court’s findings.

Case No. 19-0222:  Philip W. Madson, Jr. and Maria C. Madson v. Robert A. Scott, Laraine K. Scott, and Geralyn S. Greer, as Recorder of Shelby County, Iowa

Filed Mar 18, 2020

View Opinion No. 19-0222

            Appeal from the Iowa District Court for Shelby County, Richard H. Davidson, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (7 pages)

            Appellants appeal a district court order denying their request for attorney fees on the ground that the appellants were not the prevailing parties within the meaning of Iowa Code section 6A.24(3) (2017).  OPINION HOLDS: We agree with the district court that the appellants were not the prevailing party and affirm the denial of their request for attorney fees.  We deny the appellants’ request for appellate attorney fees.

Case No. 19-0246:  State of Iowa v. Michael T. Ferguson

Filed Mar 18, 2020

View Opinion No. 19-0246

            Appeal from the Iowa District Court for Story County, Bethany J. Currie, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J. (5 pages)

            Michael Ferguson appeals the district court’s denial of his motion in arrest of judgment.  On appeal, he argues his plea should be withdrawn because (1) the plea was not voluntary and knowing and (2) he is actually innocent.  OPINION HOLDS: We find Ferguson’s plea was voluntary and knowing.  And we find Ferguson has not met his burden of proof on his actual-innocence claim.

Case No. 19-0292:  Snipes v. Cornelius

Filed Mar 18, 2020

View Opinion No. 19-0292

            Appeal from the Iowa District Court for Pottawattamie County, Margaret Popp Reyes, Judge. AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  (6 pages)

            The plaintiffs appeal from the denial of their motions for judgment notwithstanding the verdict and new trial regarding their negligence claim.  OPINION HOLDS: Finding no abuse of discretion or errors of law, we affirm.   

Case No. 19-0416:  In the Interest of J.F., Minor Child

Filed Mar 18, 2020

View Opinion No. 19-0416

            Appeal from the Iowa District Court for Floyd County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J.  (8 pages)

            J.F. appeals a juvenile court order adjudicating him delinquent based on findings he committed the delinquent act that would constitute one count of sexual abuse in the third degree if he was an adult.  J.F. challenges the sufficiency of the evidence to support the adjudication, arguing the juvenile court misstated the facts, the State failed to prove beyond a reasonable doubt that a sex act occurred, and his accuser, S.F., was not credible.  OPINION HOLDS: We conclude there was sufficient evidence to adjudicate J.F. delinquent of committing acts that would constitute sexual abuse in the third degree.  The evidence establishes that S.F. was twelve years old at the time and the acts she claimed J.F. committed against her were sex acts.  The juvenile court found her testimony credible and supported by other witness testimony.  We give weight to the juvenile court’s credibility determination and affirm.

Case No. 19-0492:  State of Iowa v. Monica Fagan

Filed Mar 18, 2020

View Opinion No. 19-0492

            Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.  CONVICTIONS AFFIRMED; SENTENCE VACATED IN PART AND REMANDED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J. (6 pages)

           

            Monica Fagan asks to be resentenced based on new legislation.  The Iowa legislature crafted an ameliorative mandatory minimum sentencing provision for persons serving a sentence for robbery in the first degree for a conviction that occurs on or after, July 1, 2018.  Fagan’s conviction occurred after that date.  OPINION HOLDS: Based on the plain language of the enactment, we agree the district court should have another opportunity to consider Fagan’s mandatory minimum sentence.  We vacate that portion of the sentencing order and remand for the court to determine when Fagan will be eligible for parole or work release consistent with the new sentencing provisions. 

Case No. 19-0510:  Iowa Student Loan Liquidity Corp. v. Eric J. Heaton

Filed Mar 18, 2020

View Opinion No. 19-0510

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

            Iowa Student Loan Liquidity Corp. (ISL) filed suit to recover all amounts owed on the unpaid promissory notes signed by Heaton.  The district court granted ISL summary judgment, and Heaton appeals.  OPINION HOLDS: Finding no genuine issue of material fact on any of the claims Heaton preserved for our review, we affirm.

Case No. 19-0558:  State of Iowa v. Ian Lee Leib

Filed Mar 18, 2020

View Opinion No. 19-0558

            Appeal from the Iowa District Court for Audubon County, Craig M. Dreismeier, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J. (3 pages)

            Ian Leib appeals his conviction for possession of methamphetamine with intent to deliver.  OPINION HOLDS: The record is insufficient to determine whether Leib’s trial counsel was ineffective by failing to move to suppress evidence discovered during a search of his person.  We preserve the claim for a postconviction-relief proceeding.  But substantial evidence supports the conclusion that Leib possessed the methamphetamine with intent to deliver, and we affirm his conviction. 

Case No. 19-0638:  State of Iowa v. Ammari Maurece Johnson

Filed Mar 18, 2020

View Opinion No. 19-0638

            Appeal from the Iowa District Court for Buena Vista County, Don E. Courtney, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by May, J.  (5 pages)

            Ammari Johnson appeals his sentence for conspiracy to commit a forcible felony.  OPINION HOLDS: The sentencing court did not abuse its sentencing discretion.

Case No. 19-0703:  Mark Ditsworth v. Icon Ag and Federated Insurance

Filed Mar 18, 2020

View Opinion No. 19-0703

            Appeal from the Iowa District Court for Woodbury County, Jeffrey L. Poulson, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.  Opinion by Mullins, J.  (6 pages)

            Mark Ditsworth appeals a district court order affirming the Iowa Workers’ Compensation Commission’s award of benefits.  Distworth argues the commissioner inappropriately considered a settlement reached on a prior injury in reducing his benefits award.  OPINION HOLDS: We agree with the district court that the commissioner’s calculation gave effect to the statute.  Because the calculation used by the commissioner to determine the award of benefits was based on the applicable statutes, we affirm.

Case No. 19-0724:  Jared Thomas Crank v. Jessica Anne-Marie Winters

Filed Mar 18, 2020

View Opinion No. 19-0724

            Appeal from the Iowa District Court for Allamakee County, John J. Bauercamper, Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.  Opinion by Mullins, J.  (12 pages)

            Jared Crank appeals, and Jessica Winters cross-appeals, the modification of a custody decree concerning the parties’ minor child, R.C., born in 2013.  Jared argues the court erred in increasing Jessica’s visitation because Jessica only requested modification of physical care.  Jessica contends the court erred in denying her request for modification of physical care.  OPINION HOLDS: We affirm the district court’s modification of the custody decree.

Case No. 19-0751:  State of Iowa v. Matthew Gene Spaans

Filed Mar 18, 2020

View Opinion No. 19-0751

            Appeal from the Iowa District Court for Sioux County, Jeffrey L. Poulson, Judge.  SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., Doyle, J., and Gamble, S.J.  Opinion by Gamble, S.J. (11 pages)

            Matthew Spaans appeals from his sentence for four counts of child endangerment.  OPINION HOLDS: The State did not violate the plea agreement when making a sentencing recommendation.  The sentencing court did not rely improper sentencing factors.  We remand the to the district court for receipt of a final restitution order providing the amount of court costs due and a determination of Spaans’s reasonable ability to pay.

Case No. 19-0897:  State of Iowa v. Joshua I. VanSant

Filed Mar 18, 2020

View Opinion No. 19-0897

            Appeal from the Iowa District Court for Des Moines County, Michael J. Schilling, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by May, J.  (2 pages)

            Joshua VanSant appeals his sentence for eluding.  OPINION HOLDS: The sentencing court did not abuse its discretion by declining to adopt the presentence investigation report’s sentencing recommendation.

Case No. 19-0936:  In the Matter of L.M., Alleged to Be Seriously Mentally Impaired

Filed Mar 18, 2020

View Opinion No. 19-0936

            Appeal from the Iowa District Court for Jasper County, Steven J. Holwerda, District Associate Judge.  REVERSED AND REMANDED WITH DIRECTIONS.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Schumacher, J.  (9 pages)

            L.M. appeals from a district court order imposing a civil mental health commitment.  OPINION HOLDS: Because the district court’s finding that L.M. is seriously mentally impaired was not supported by substantial evidence, we reverse the decision below and remand for termination of L.M.’s civil commitment under Iowa Code chapter 229 (2019). 

Case No. 19-0965:  State of Iowa v. Jennifer Sue Mohlis

Filed Mar 18, 2020

View Opinion No. 19-0965

            Appeal from the Iowa District Court for Bremer County, Chris Foy, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            Jennifer Mohlis appeals the district court’s imposition of her sentence, contending that the district court invalidly considered facts not in evidence as a reason supporting its sentencing decision.  OPINION HOLDS: We conclude the court did not apply a fixed policy, and we affirm the district court’s sentence.

Case No. 19-1039:  State of Iowa v. Antoine J. Allen

Filed Mar 18, 2020

View Opinion No. 19-1039

            Appeal from the Iowa District Court for Clinton County, Patrick A. McElyea, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (3 pages)

            Antoine Allen appeals the denial of his motion in arrest of judgment after pleading guilty to one count of second-degree robbery.  OPINION HOLDS: The court substantially complied with the requirements of Iowa Rule of Criminal Procedure 2.8(2)(b) to ensure Allen entered his plea knowingly and voluntarily.  It asked Allen whether anyone made promises or threats to induce him to plead guilty and accurately restated the agreement to determine Allen’s understanding.  On this record, we find no abuse of discretion in denying Allen’s motion.

Case No. 19-1907:  In the Interest of O.S., Minor Child

Filed Mar 18, 2020

View Opinion No. 19-1907

            Appeal from the Iowa District Court for Pottawattamie County, Scott Strait, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., Schumacher, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (9 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: The expedited appeals process, which resulted in the mother preparing her petition on appeal without the hearing transcripts, did not violate the mother’s due process rights.  The statutory grounds authorizing termination were satisfied because the child could not be returned to the mother’s care.  Termination is in the child’s best interest.  And no permissive factor should be applied to preclude termination.

Case No. 19-2094:  In the Interest of A.E., A.E., A.E., and A.E., Minor Children

Filed Mar 18, 2020

View Opinion No. 19-2094

            Appeal from the Iowa District Court for Pottawattamie County, Charles D. Fagan, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., Greer, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (7 pages)

            A mother appeals the juvenile court order terminating her parental rights.  OPINION HOLDS:  We find there is clear and convincing evidence in the record to support termination of the mother’s parental rights.  We find the State engaged in reasonable efforts to reunite the mother with the children and termination is in the children’s best interests.  We affirm the decision of the juvenile court.

Case No. 20-0004:  In the Interest of A.M. and A.M., Minor Children

Filed Mar 18, 2020

View Opinion No. 20-0004

            Appeal from the Iowa District Court for Dallas County, Virginia Cobb, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            A mother and father separately appeal the termination of their parental rights to their two children, arguing: (A) the record lacks clear and convincing evidence to support the grounds for termination cited by district court; (B) termination was not in the children’s best interests; and (C) the district court should have granted an exception to termination based on the parent-child bond.  OPINION HOLDS: We affirm the termination of the parents’ rights to the children.

Case No. 20-0058:  In the Interest of M.M., L.C., and C.C., Minor Children

Filed Mar 18, 2020

View Opinion No. 20-0058

            Appeal from the Iowa District Court for Jasper County, Steven J. Holwerda, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Schumacher, J.  (8 pages)

            A mother of three children and the father of one of the children separately appeal the termination of their parental rights.  OPINION HOLDS: We find there is clear and convincing evidence in the record to support termination of the parents’ rights.  On the mother’s claim, we find termination of her parental rights is in the children’s best interests.  The father claims the court should have applied an exception to termination, and we find the court properly denied his claim.  Accordingly, we affirm the decision of the juvenile court.

Case No. 20-0080:  In the Interest of G.V., Minor Child

Filed Mar 18, 2020

View Opinion No. 20-0080

            Appeal from the Iowa District Court for Boone County, James B. Malloy, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by May, J.  (7 pages)

            A mother appeals the juvenile court’s termination of her parental rights.  OPINION HOLDS: We conclude termination was appropriate under Iowa law and consistent with the child’s best interest.

Case No. 17-1847:  State of Iowa v. Donovan Michael Lee Helms Houghmaster

Filed Mar 04, 2020

View Opinion No. 17-1847

            Appeal from the Iowa District Court for Union County, Patrick W. Greenwood, Judge.  AFFIRMED AND REMANDED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J. (7 pages)

            Donovan Houghmaster appeals following his guilty pleas to theft of a motor vehicle, criminal mischief in the second degree, and lascivious acts with a child, contending the district court: (1) should not have relied on the risk assessment tools referenced in the presentence investigation (PSI) report; (2) improperly relied on the sentencing recommendation in the PSI report; (3) entered conflicting orders on reimbursement of attorney fees; and (4) erred in ordering him to make restitution of “all counseling required for the victim” rather than counseling associated with the crime.  OPINION HOLDS: We affirm and remand for the district court to issue a nunc pro tunc order to remove the assessment of attorney’s fees inconsistent with the court’s oral pronouncement of Houghmaster’s sentence. 

Case No. 18-0764:  State of Iowa v. Eric Dewayne Campbell Jr.

Filed Mar 04, 2020

View Opinion No. 18-0764

            Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter, Judge.  CONVICTIONS AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J.  (14 pages)

            A jury found Eric Campbell Jr. guilty of robbery in the first degree and voluntary manslaughter.  On appeal, Campbell maintains (1) there is insufficient evidence to support his convictions, (2) the court abused its discretion in admitting prior-bad-acts evidence, and (3) the court abused its discretion in sentencing him.  OPINION HOLDS: Because sufficient evidence supports his convictions and the trial court did not abuse its discretion in admitting a challenged photo, we affirm Campbell’s convictions.  However, the sentencing court relied on improper factors in imposing sentence, and we remand for resentencing. 

Case No. 18-0799:  Brandon Lynn Schaul v. State of Iowa

Filed Mar 04, 2020

View Opinion No. 18-0799

            Appeal from the Iowa District Court for Linn County, Sean W. McPartland, Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Vaitheswaran, J.  (18 pages)

            Brandon Schaul appeals the denial of his postconviction-relief petition, asserting multiple instances of ineffective assistance of counsel on the part of his trial and appellate counsel.   OPINION HOLDS: Because we find no prejudice both alone and cumulatively, we affirm.

Case No. 18-0803:  Dwayne Williams v. State of Iowa

Filed Mar 04, 2020

View Opinion No. 18-0803

            Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.  Opinion by Mullins, J.  (6 pages)

            Dwayne Williams appeals the summary disposition of his application for postconviction relief.  OPININON HOLDS: We affirm the district court. 

Case No. 18-0958:  State of Iowa v. Melanie Anne Holman

Filed Mar 04, 2020

View Opinion No. 18-0958

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED.  Considered by Bower, C.J., Mullins, J., and Carr, S.J.  Opinion by Carr, S.J.  (5 pages)

            Melanie Anne Holman appeals her conviction for operating while intoxicated, third or subsequent offense.  OPINION HOLDS: Holman has failed to show she received ineffective assistance of counsel.  Counsel had no duty to move to suppress the breath test results because there is no probability the motion would have succeeded.  And Holman was not prejudiced by counsel’s failure to move to suppress any statements made after she asked for an attorney or challenge evidence that she was operating under the influence of alcohol because the State only prosecuted her under the theory that she operated a motor vehicle while having an alcohol concentration of .08 or more. 

Case No. 18-0983:  Albert Johnson III v. State of Iowa

Filed Mar 04, 2020

View Opinion No. 18-0983

            Appeal from the Iowa District Court for Scott County, Mark R. Lawson, Judge.  AFFIRMED.  Considered by Bower, C.J., Mullins, J., and Vogel, S.J.  Opinion by Mullins, J.  (14 pages)

            Albert Johnson appeals the denial of his application for postconviction relief (PCR).  He makes several claims of ineffective assistance of counsel and prosecutorial misconduct.  OPINION HOLDS: Trial counsel was not ineffective in failing to object to police testimony outside the scope of the minutes of evidence, a joint-criminal-conduct jury instruction, and multiple improprieties allegedly committed by the State during closing arguments.  Appellate counsel was not ineffective in failing to argue the speedy-trial waiver was involuntary because no duty was breached.  PCR claims related to failure to develop a record are unsuccessful because of Johnson’s failure to sufficiently identify error for this court to review and claims regarding violations of the rules of professional conduct fail because no prejudice has resulted.  Johnson presented no sufficient cause for failing to raise prosecutorial misconduct on direct appeal.  Therefore, we need not reach the merits of the prosecutorial-misconduct claims. 

Case No. 18-1145:  Iowa Farm Bureau Federation v. Daden Group, Inc.

Filed Mar 04, 2020

View Opinion No. 18-1145

            Appeal from the Iowa District Court for Linn County, Christopher L. Bruns, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.  Opinion by Vaitheswaran, P.J.  (13 pages)

            We must decide whether a subrogation agreement was enforceable, whether a company and its principals waived certain defenses, and whether a director of the company breached a fiduciary duty.  OPINION HOLDS: Because the subrogation agreement was valid under the basic tenets of subrogation law, the waivers were enforceable, and Adam Koppes made decisions in the appellants’ best interests, we affirm.

Case No. 18-1209:  Hayes Elbert Baker III v. State of Iowa

Filed Mar 04, 2020

View Opinion No. 18-1209

            Appeal from the Iowa District Court for Woodbury County, Duane E. Hoffmeyer, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J.  (7 pages)

            Hayes Baker III appeals the denial of his fourth postconviction-relief application (PCR) on statute-of-limitation grounds.  He argues new evidence establishes an actual-innocence claim to overcome the statute-of-limitations defense.  OPINION HOLDS: We conclude a gateway actual-innocence exception does not apply here.  Because Baker filed this fourth PCR application more than three years after procedendo issued, it is barred by the statute of limitations. 

Case No. 18-1518:  State of Iowa v. Alexander Douglas Blaess

Filed Mar 04, 2020

View Opinion No. 18-1518

            Appeal from the Iowa District Court for Howard County, John J. Bauercamper, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J. (8 pages)

            Alexander Blaess challenges the denial of his motion to suppress, arguing the search warrant was unsupported by probable cause.  OPINION HOLDS: We find a substantial basis existed for concluding drugs, drug paraphernalia, or evidence of drug trafficking would be found in Blaess’s home at the time the warrant was issued and affirm the denial of Blaess’s motion to suppress. 

Case No. 18-1584:  State of Iowa v. Carrie Ann Carre

Filed Mar 04, 2020

View Opinion No. 18-1584

            Appeal from the Iowa District Court for Jasper County, Terry Rickers, Judge.  REVERSED AND REMANDED.  Heard by Bower, C.J., and Tabor, Mullins, May and Greer, JJ.  Opinion by Tabor, J.  Special Concurrence by May, J.  Partial Dissent by Greer, J.  (30 pages)

            Carrie Carre appeals from her convictions for possession of methamphetamine with intent to deliver and sponsoring a gathering where controlled substances are used.  A police officer entered Carre’s home with boyfriend David Putz to locate a juvenile he was told would be in their home.  Carre appeals the suppression ruling finding the officer’s entry did not violate her constitutional rights.  OPINION HOLDS: Because the State failed to show a recognized exception to the warrant requirement justified the entry, we reverse the suppression ruling and remand for further proceedings consistent with this opinion.  SPECIAL CONCURRENCE ASSERTS: I accept the district court’s conclusion concerning the officer’s motivation for entering the home.  Still, I agree we must reverse because (1) Officer Hansen entered the home without a warrant and (2) the State failed to prove any recognized exception to the warrant requirement.  PARTIAL DISSENTS ASSERTS: While I concur with the majority that there was not probable cause coupled with exigent circumstances to support the warrantless entry, I believe the State has shown the officer’s actions fall under the community-caretaking exception to the warrant requirement.  I would affirm the district court’s ruling on that issue.

Case No. 18-1590:  State of Iowa v. David M. Putz

Filed Mar 04, 2020

View Opinion No. 18-1590

            Appeal from the Iowa District Court for Jasper County, Terry Rickers, Judge.  REVERSED AND REMANDED.  Heard by Bower, C.J., and Tabor, Mullins, May, and Greer, JJ.  Opinion by Tabor, J.  Special Concurrence by May, J.  Partial Dissent by Greer, J.  (20 pages)

           

            David Putz appeals from his convictions for possession of marijuana with intent to deliver and sponsoring a gathering where controlled substances are used.  A police officer entered Putz’s home with girlfriend Carrie Carre to locate a juvenile he was told would be in their home.  Putz appeals the suppression ruling finding the officer’s entry did not violate his constitutional rights.  OPINION HOLDS: Because the State failed to show a recognized exception to the warrant requirement justified the entry, we reverse the suppression ruling and remand for further proceedings consistent with this opinion.  SPECIAL CONCURRENCE ASSERTS: I specially concur for the reasons explained in my special concurrence in State v. Carre, No. 18-1584, 2020 WL _______ (Iowa Ct. App. Mar. 4, 2020), also filed today.  PARTIAL DISSENT ASSERTS: For the reasons stated in my partial dissent in State v. Carre, No. 18-1564, 2020 WL ____ (Iowa Ct. App. Mar. 4, 2020), also filed today, I would find the officer’s warrantless entry into the home falls under the community-caretaking exception to the warrant requirement.

Case No. 18-1857:  State of Iowa v. Mariana T. Lesnic

Filed Mar 04, 2020

View Opinion No. 18-1857

            Appeal from the Iowa District Court for Iowa County, Andrew B. Chappell, Judge.  CONVICTION AFFIRMED; SENTENCE VACATED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J. (14 pages)

            Mariana Lesnic appeals her conviction, sentence, and judgment following a jury trial and verdict.  On appeal, Lesnic alleges the district court erred by (1) failing to suspend proceedings and order another competency evaluation under Iowa Code chapter 812 (2018); (2) concluding Lesnic was competent to represent herself; and (3) failing to determine Lesnic’s reasonable ability to pay restitution. OPINION HOLDS: The district court did not err by finding Lesnic was competent to stand trial or competent to represent herself.  We vacate the part of the sentencing order dealing with restitution and remand the case to the trial court for completion of a final restitution order and a subsequent determination of Lesnic’s reasonable ability to pay.

Case No. 18-1966:  Benskin, Inc. v. West Bank

Filed Mar 04, 2020

View Opinion No. 18-1966

            Appeal from the Iowa District Court for Polk County, Samantha Gronewald, Judge.  REVERSED AND REMANDED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (13 pages)

            Benskin, Inc. (Benskin) appeals the district court decision dismissing its action against West Bank.  The court found Benskin’s claims of breach of contract and fraud were barred by the statute of limitations and its claim of slander of title failed to state a claim upon which relief could be granted.  OPINION HOLDS: Benskin’s petition adequately alleged the doctrine of equitable estoppel as a response to West Bank’s statute of limitations defense to make dismissal of the claims of breach of contract and fraud improper.  Also, the petition adequately apprised West Bank of the claim of slander of title, making dismissal of this count for failure to state a claim upon which relief may be granted improper as well.  We reverse the decision of the district court and remand for further proceedings.

Case No. 18-2033:  State of Iowa v. Gregory Doorene Winter

Filed Mar 04, 2020

View Opinion No. 18-2033

            Appeal from the Iowa District Court for Winneshiek County, Margaret L. Lingreen, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (4 pages)

            Gregory Winter appeals his conviction for driving while revoked.  OPINION HOLDS: Counsel was not ineffective in allowing Winter to plead guilty because his plea was supported by a factual basis.  Winter’s claim alleging he was coerced into pleading guilty is preserved for future postconviction-relief proceedings.

Case No. 18-2044:  State of Iowa v. Catherine Wonsour Nimely

Filed Mar 04, 2020

View Opinion No. 18-2044

            Appeal from the Iowa District Court for Muscatine County, Gary P. Strausser, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J.  (6 pages)

            Catherine Nimely appeals her conviction and sentence following her guilty plea to assault causing bodily injury, claiming ineffective assistance of counsel.  Nimely claims that her counsel improperly allowed her to plead guilty when there was an insufficient factual basis to support her plea.  OPINION HOLDS: We find a sufficient factual basis and affirm.

Case No. 18-2156:  James W. Palensky and Teresa A. Scheib-Palensky, as Trustees of the Palensky 1998 Trust dated February 25, 1998 v. Story County Board of Adjustment

Filed Mar 04, 2020

View Opinion No. 18-2156

            Appeal from the Iowa District Court for Story County, Bethany Currie, Judge.  WRIT SUSTAINED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (9 pages)

            The Story County Board of Adjustment (Board) appeals district court orders sustaining a writ of certiorari, annulling previous proceedings before the Board, and remanding the matter to the Board.  The Board argues the district court erred in finding the Board failed to substantially comply with the requirement to make written findings of fact and legal conclusions.  OPINION HOLDS: Our review of the record does not reveal the factual basis upon which the Board relied in granting the conditional use permit.  Accordingly, the Board did not comply with the ordinance requiring written findings of fact.  Thus, the writ for certiorari is sustained. 

Case No. 18-2164:  James Alan Christensen v. State of Iowa

Filed Mar 04, 2020

View Opinion No. 18-2164

            Appeal from the Iowa District Court for Woodbury County, Jeffrey L. Poulson, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J.  (7 pages)

            James Christensen appeals the district court’s denial of his second application for postconviction relief (PCR).  Christensen argues he is entitled to a new trial based on newly discovered evidence.  OPINION HOLDS: We conclude this evidence is merely cumulative and impeaching and would not have changed the result of the trial.  We affirm the denial of his second PCR application.

Case No. 18-2168:  In re the Detention of David L. Taft, Jr.

Filed Mar 04, 2020

View Opinion No. 18-2168

            Appeal from the Iowa District Court for Linn County, Mary E. Chicchelly, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (4 pages)

            David Taft appeals the denial of his petition for discharge from the sexually violent predator program or placement in a transitional release program.  OPINION HOLDS: Although Taft’s challenge to the State’s burden of proof at a review hearing is not moot, his claim was rejected in a prior appeal, which is now the law of the case.  We find Taft’s general challenge to the criteria for the transitional release program moot.

Case No. 18-2188:  State of Iowa v. Deven Deschepper

Filed Mar 04, 2020

View Opinion No. 18-2188

            Appeal from the Iowa District Court for Scott County, Mark D. Cleve and Henry W. Latham II, Judges.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (4 pages)

            Deven Deschepper pleaded guilty to possession with intent to deliver marijuana, a class “D” felony, and possession of amphetamine, a serious misdemeanor.  He appeals, arguing the court abused its discretion in declining to defer judgment and in not stating a reason for the consecutive terms.  OPINION HOLDS: Deschepper cannot overcome the strong presumption of validity accorded the sentencing court’s exercise of discretion. Because the court attributed the consecutive sentences to his extensive criminal history, the court complied with the mandate in State v. Hill, 878 N.W.2d 269, 275 (Iowa 2016).  Finding no abuse of discretion, we affirm the sentence.

Case No. 19-0071:  State of Iowa v. Jenna Lea DeBrower

Filed Mar 04, 2020

View Opinion No. 19-0071

            Appeal from the Iowa District Court for Poweshiek County, Rose Anne Mefford, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., Greer, J., and Carr, S.J.  Opinion by Carr, S.J.  (5 pages)

            Jenna Lea DeBrower challenges the denial of her motions to suppress evidence she claims the State obtained in violation of her constitutional rights.  OPINION HOLDS: Law enforcement did not violate DeBrower’s constitutional right to be free from unreasonable searches and seizures.  The search of a closed bag in her vehicle was not a warrantless inventory search.  Instead, it fell within the automobile exception to the warrant requirement because the officers had probable cause to believe it contained contraband.  And the officers did not have to give DeBrower Miranda warnings because she was not in custody.

Case No. 19-0081:  State of Iowa v. Jaime Enrique Lopez Gonzalez

Filed Mar 04, 2020

View Opinion No. 19-0081

            Appeal from the Iowa District Court for Warren County, Kevin A. Parker, District Associate Judge.  REVERSED AND REMANDED FOR A NEW TRIAL.  Heard by Vaitheswaran, P.J., Schumacher, J., and Potterfield, S.J.  Opinion by Schumacher, J.  (9 pages)

            Jaime Lopez Gonzalez appeals his conviction for operating while intoxicated, first offense.  OPINION HOLDS: Lopez Gonzalez argues a statement he made to the arresting state trooper was sufficient to trigger the requirement that the trooper allow him to contact an attorney or family member pursuant to Iowa Code section 804.20 (2017).  We agree and accordingly we find the district court erred by denying his motion to suppress.  Reversed and remanded for new trial.

Case No. 19-0087:  State of Iowa v. Anthony Guy Stoner

Filed Mar 04, 2020

View Opinion No. 19-0087

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J. (14 pages)

            Anthony Stoner appeals his convictions and sentences following his guilty pleas to three counts of lascivious acts with a child.  On appeal, he argues (1) his guilty pleas were not knowing and voluntary; (2) the district court abused its discretion by failing to provide adequate reasons for ordering consecutive sentences; (3) the district court erred by unlawfully assessing restitution against him; and (4) the district court entered an illegal sentence by imposing surcharges under Iowa Code section 911.2B (2018) in regard to one of the cases.  OPINION HOLDS: Stoner has not preserved his guilty plea argument for direct appeal.  We preserve his argument for postconviction-relief proceedings.  The district court provided adequate reasons for ordering consecutive sentences.  We vacate the part of Stoner’s sentences regarding the section 911.2B surcharge related to M.H. and restitution.  We remand to the district court for entry of a corrected sentence and resentencing consistent with this opinion.

Case No. 19-0137:  State of Iowa v. Trevion Dupri Smith-Toles

Filed Mar 04, 2020

View Opinion No. 19-0137

            Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L. Larson, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Mullins, J. (4 pages)

            Trevion Smith-Toles appeals the sentence imposed upon his criminal conviction, arguing the court improperly considered characteristics of youth as aggravating, rather than mitigating, factors in imposing sentence.  OPINION HOLDS: We conclude the court considered the features of Smith-Toles’s youth as mitigating, not aggravating, and we find no abuse of discretion.  We affirm. 

Case No. 19-0218:  Martaves Deshone Keys v. State of Iowa

Filed Mar 04, 2020

View Opinion No. 19-0218

            Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            Martaves Keys appeals from the district court’s denial of his application for postconviction relief following his 2009 convictions on two counts of first-degree murder.  Keys contends the postconviction court erred in  “failing to rule on [his] effort to set [a] new and more stringent standard for postconviction relief pursuant to the Iowa Constitution” and “declining to reach the issue of cumulative error.”  Keys also contends the court should not have denied his claims that his trial attorneys were ineffective in (a) making a brief opening statement, (2) failing to file a motion for change of venue, and (3) failing to request a jury instruction on  officer credibility.  OPINION HOLDS: We conclude the district court appropriately denied the postconviction-relief application.

Case No. 19-0231:  State of Iowa v. Michael Gene Lofstuen

Filed Mar 04, 2020

View Opinion No. 19-0231

            Appeal from the Iowa District Court for Bremer County, Chris Foy, Judge.  AFFIRMED IN PART, VACATED IN PART, AND REMANDED. Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J. (5 pages)

           

            Michael Lofstuen appeals from his conviction and sentence for various drug crimes entered after his guilty plea.  On appeal, Lofstuen argues the district court improperly ordered him to pay restitution for court costs, surcharges, and correctional fees when the amount of restitution was unknown.  OPINION HOLDS: We conclude the court itemized the amount of the surcharges and penalty and could permissibly order him to pay these amounts without considering his reasonable ability to pay.  Because the clerk of court had not yet filed the amount of outstanding court costs, we vacate that portion of the sentencing order and remand for the district court for entry of a final restitution order.

Case No. 19-0281:  Adil D. Adams v. University of Iowa Hospitals & Clinics

Filed Mar 04, 2020

View Opinion No. 19-0281

            Appeal from the Iowa District Court for Johnson County, Chad A. Kepros, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (5 pages)

            Adil Adams appeals the district court’s dismissal of his attempt to challenge a decision by the Iowa Civil Rights Commission (ICRC) to close its investigation of his complaint against the University of Iowa Hospitals and Clinics (UIHC).  Adams claims the district court should have granted his motion to reopen the judicial review because he did not receive UIHC’s motion to dismiss or the order dismissing the case.  Adams also contends the district court violated his due process rights by not setting his motion to reopen for a hearing.  OPINION HOLDS: The information available in the record confirms the UIHC sent its motion to dismiss to both his email accounts.  Adams bore the responsibility to update his email, monitor his accounts, and notify the court if he could no longer participate as a registered filer in EDMS.  Next, because Adams does not state in his brief where in the record he preserved the constitutional issue for our review, and we cannot find a district court ruling on his due process issue, we decline to address it.

Case No. 19-0312:  State of Iowa v. Marcus A. Hall

Filed Mar 04, 2020

View Opinion No. 19-0312

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (11 pages)

            Marcus Hall appeals his convictions for possession of methamphetamine with intent to deliver and failure to affix a drug tax stamp.  OPINION HOLDS: Because all of the evidence Hall objected to on hearsay grounds was cumulative to other evidence in the record, we conclude the evidence was not prejudicial.  We do not consider Hall’s arguments concerning the offense of conspiracy to deliver a controlled substance because he was not convicted on that offense due to the merger of convictions.  There is substantial evidence in the record to support Hall’s convictions for possession of methamphetamine with intent to deliver and failure to affix a drug tax stamp.  We affirm his convictions.

Case No. 19-0353:  State of Iowa v. Bradley K. Fender

Filed Mar 04, 2020

View Opinion No. 19-0353

            Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J. (6 pages)

           

            Bradley Fender appeals his conviction for indecent exposure.  He argues the prosecution failed to prove beyond a reasonable doubt he was the person seen exposing his genitals to the victim.  OPINION HOLDS: Viewing the evidence in the light most favorable the State, including the victim’s in-court identification of Fender, we affirm the district court’s verdict.

Case No. 19-0522:  State of Iowa v. Travis Jeffrey Barker

Filed Mar 04, 2020

View Opinion No. 19-0522

            Appeal from the Iowa District Court for Carroll County, Joseph McCarville, District Associate Judge.  CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED FOR RESENTENCING.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (3 pages)

            Travis Barker appeals his conviction and sentence after pleading guilty to assault.  He argues the sentencing procedure was defective and counsel was ineffective.  OPINION HOLDS: We find Barker did not knowingly and intentionally waive his right of allocution.  So we must remand for resentencing.  And we preserve his ineffective-assistance claim for a future postconviction proceeding.

Case No. 19-0537:  State of Iowa v. Grason Trever Lansman

Filed Mar 04, 2020

View Opinion No. 19-0537

            Appeal from the Iowa District Court for Story County, Steven P. Van Marel, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (7 pages)

            Grason Lansman appeals his conviction for driving while barred.  He contends the district court erred in denying his motion to suppress evidence gathered during a traffic stop he alleges violated both his federal and state constitutional rights against unlawful seizure.  Lansman argues the stopping officer wrongly believed his older model vehicle violated a rear lighting statute.  OPINION HOLDS: Because the officer made a mistake of fact—and not a mistake of law—we second the district court’s denial of the motion to suppress and affirm Lansman’s conviction.

Case No. 19-0562:  State of Iowa v. Ruben Deases

Filed Mar 04, 2020

View Opinion No. 19-0562

            Appeal from the Iowa District Court for Story County, Bethany J. Currie, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Vaitheswaran, P.J.  Special concurrence by May, J.  (16 pages)

            Ruben Deases, initially sentenced as a minor for first-degree murder, appeals his re-sentencing of life in prison with the possibility of parole after serving a minimum of forty years in prison, arguing that the court placed undue weight on the nature of the crime and did not adequately balance that with all of the evidence of his rehabilitation. OPINION HOLDS: Because the court did not abuse its discretion in its thorough consideration of the sentencing factors, we affirm.  SPECIAL CONCURRENCE ASSERTS: I wholeheartedly agree there was no abuse of discretion and we should affirm.  But I respectfully submit we should not question the propriety of the State’s expert.

Case No. 19-0563:  Charles Allen Richards v. Iowa District Court for Monona County

Filed Mar 04, 2020

View Opinion No. 19-0563

            Appeal from the Iowa District Court for Woodbury County, Jeffrey L. Poulson, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (3 pages)

            Charles Richards appeals the dismissal of his petition for declaratory judgment.  OPINION HOLDS: The district court was correct in dismissing Richards’s action because he brought suit against the wrong entity. 

Case No. 19-0617:  State of Iowa v. Hiram Arizmendi

Filed Mar 04, 2020

View Opinion No. 19-0617

            Appeal from the Iowa District Court for Marshall County, John J. Haney, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Schumacher, J.  (6 pages)

            Hiram Arizmendi appeals his conviction for lascivious acts with a child.  OPINION HOLDS: The district court gave adequate reasons for Arizmendi’s sentence.  We find the district court did not abuse its discretion in sentencing Arizmendi to a term of imprisonment.  The court did not rely on clearly untenable or unreasonable grounds for the sentence.  We affirm Arizmendi’s conviction and sentence.

Case No. 19-0626:  Katherine Henderson v. Matthew Mullenix

Filed Mar 04, 2020

View Opinion No. 19-0626

            Appeal from the Iowa District Court for Appanoose County, Daniel P. Wilson, Judge.  REVERSED AND REMANDED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J.  (6 pages)

            Matthew Mullenix appeals a final domestic abuse protective order issued under Iowa Code chapter 236 (2019).  Mullenix argues insufficient evidence supported the district court’s determination he committed an assault under Iowa Code section 708.1.  OPINION HOLDS: Threatening text messages, voice mail messages, and letters did not constitute an assault and no in-person threats were established, so there is insufficient evidence to support the district court’s finding Mullenix committed an assault.  We reverse and remand for dismissal of the petition for relief from domestic abuse.

Case No. 19-0706:  State of Iowa v. Alicia Marie Rios

Filed Mar 04, 2020

View Opinion No. 19-0706

            Appeal from the Iowa District Court for Fayette County, Linda M. Fangman, Judge.  AFFIRMED. Considered by Mullins, P.J., Schumacher, J., and Danilson, S.J.  Opinion by Danilson, S.J. (7 pages)

            Alicia Rios appeals her conviction of murder in the first degree.  She claims she received ineffective assistance because defense counsel permitted her to plead guilty when there was not a sufficient factual basis for her plea.  OPINION HOLDS:  We find there is sufficient evidence in the minutes of evidence to show Rios acted with malice aforethought and manifested an extreme indifference to human life.  We conclude Rios has not shown she received ineffective assistance of counsel and affirm her conviction.

Case No. 19-0707:  State of Iowa v. Christopher Michael Retman

Filed Mar 04, 2020

View Opinion No. 19-0707

            Appeal from the Iowa District Court for Jasper County, Thomas P. Murphy, Judge.  AFFIRMED.  Considered by Doyle, P.J., May, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (6 pages)

            Christopher Retman appeals, challenging the factual basis for his guilty plea to the charge of arson in the third degree.  OPINION HOLDS: Upon our review, we affirm.

Case No. 19-0729:  Jonathan W. Hanig v. Brittany Mae Walker

Filed Mar 04, 2020

View Opinion No. 19-0729

            Appeal from the Iowa District Court for Hancock County, Rustin T. Davenport, Judge.  AFFIRMED.  Considered by Greer, P.J., Ahlers, J., and Vogel, S.J.  Opinion by Vogel, S.J.  (4 pages)

            Brittany Walker appeals the district court’s order denying her application to modify physical care of J.H., her child with Jonathan Hanig.  She argues the district court should have recognized there was a substantial change in circumstances and placed physical care of J.H. with her.  OPINION HOLDS: We agree with the court’s denial of Walker’s application, and we deny both parties’ requests for appellate attorney fees.

Case No. 19-0841:  Katherine I. Baldwin v. Devon Edward Frasch a/k/a Devon Edward Frash

Filed Mar 04, 2020

View Opinion No. 19-0841

            Appeal from the Iowa District Court for Floyd County, James M. Drew, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (3 pages)

            Katherine Baldwin appeals the district court’s order voiding the modification of child support and dismissing her contempt action against Devon Frash.  OPINION HOLDS: We agree with the district court’s thorough, detailed order.  Baldwin’s argument on appeal was not ruled on below.  Therefore, it is waived. 

Case No. 19-0865:  State of Iowa v. Amber Marie Grady

Filed Mar 04, 2020

View Opinion No. 19-0865

            Appeal from the Iowa District Court for Osceola County, David A. Lester and Charles K. Borth, Judges.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J. (9 pages)

            Amber Grady appeals her judgment and sentence for operating a motor vehicle while under the influence of a controlled substance.  OPINION HOLDS: Grady claims the officer lacked reasonable suspicion to initiate the stop of her vehicle.  Because she did not raise this argument below, error is not preserved.  Although Grady alleges her trial counsel was ineffective in failing to make this argument to the district court, we find that the argument has no merit.  She has therefore failed to show her trial counsel was ineffective.  And we will not apply the plain-error doctrine, which our supreme court has expressly and repeatedly declined to adopt.

Case No. 19-0932:  State of Iowa v. Patrick Person

Filed Mar 04, 2020

View Opinion No. 19-0932

            Appeal from the Iowa District Court for Dubuque County, Michael J. Shubatt, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J.  (5 pages)

            Patrick Person appeals his sentences for eleven felony convictions, claiming the district court abused its discretion by not granting his request for deferred judgments.  OPINION HOLDS: Since the district court adequately explained the reasons for the sentences imposed and did not consider any impermissible factors, we conclude the district court did not abuse its discretion by denying Person’s request for deferred judgments.

Case No. 19-0983:  State of Iowa v. Jordan Jerel Adams

Filed Mar 04, 2020

View Opinion No. 19-0983

            Appeal from the Iowa District Court for Linn County, Ian K. Thornhill and Mitchell E. Turner, Judges.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  (5 pages)

            Jordan Adams appeals his conviction for assault with intent to commit sexual abuse with no injury.  OPINION HOLDS: Adams waived his challenge to the denial of a joint motion to continue when he entered his guilty plea and failed to preserve error on his challenge to the guilty plea.  We affirm.

Case No. 19-1031:  State of Iowa v. George James Jackson

Filed Mar 04, 2020

View Opinion No. 19-1031

            Appeal from the Iowa District Court for Story County, James C. Ellefson, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (7 pages)

            George Jackson contends the sentencing court erred in correcting his original illegal sentence without holding a hearing where he could be present.  OPINION HOLDS:  Only the portion of the sentence imposed by the nunc pro tunc order that this court vacated required resentencing for imposition of the statutorily required batterers’ treatment program.  Jackson knew of the requirement that he attend a batterers’ treatment program when he pled guilty plea and no doubt expected his sentence to include the requirement.  We therefore conclude that Jackson’s presence was not required at the correction of his sentence, and any error was harmless.

Case No. 19-1057:  In re the Marriage of Leff

Filed Mar 04, 2020

View Opinion No. 19-1057

            Appeal from the Iowa District Court for Howard County, Richard D. Stochl, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J.  (5 pages)

            Carrie Leff appeals the denial of her application for rule to show cause regarding her ex-husband, Charles Leff, and the denial of her request for trial attorney fees.  She also requests appellate attorney fees.  OPINION HOLDS: We find the trial court did not grossly abuse its discretion in declining to hold Charles in contempt for his underpayment of spousal support.  We further find no statutory authority to award trial or appellate attorney fees to Carrie here.  Therefore, we affirm and deny Carrie’s request for appellate attorney fees.

Case No. 19-1132:  Jason Heusinkveld v. Kimberly Schlecht

Filed Mar 04, 2020

View Opinion No. 19-1132

            Appeal from the Iowa District Court for Clinton County, Marlita A. Greve, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Schumacher, J.  (8 pages)

            A father appeals from the dismissal of his petition to modify an order’s custodial provisions.  OPINION HOLDS: The changes in circumstances since the order entered in 2017 fall short of the heavy burden necessary for a modification of custody.  We therefore affirm the dismissal of the father’s petition to modify the custodial order.  We decline to award appellate attorney fees to the mother and assess costs on appeal to the father.

Case No. 19-1494:  In the Matter of the Guardianship and Conservatorship of Diane Florence Norelius

Filed Mar 04, 2020

View Opinion No. 19-1494

            Appeal from the Iowa District Court for Crawford County, James S. Heckerman, Judge.  AFFIRMED.  Considered by Bower, C.J., and Tabor and Mullins, JJ.  Opinion by Mullins, J.  Schumacher, J., takes no part.  (4 pages)

            Appellants appeal an award of guardian fees in a probate proceeding.  OPINION HOLDS: We affirm the award of fees in favor of the guardian. 

Case No. 19-1686:  In the Interest of J.C. and S.B., Minor Children

Filed Mar 04, 2020

View Opinion No. 19-1686

            Appeal from the Iowa District Court; for Mitchell County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            A mother appeals the termination of her parental rights to two children, contending (1) the State failed to prove the grounds for termination cited by the juvenile court; (2) termination was not in the children’s best interests; (3) the juvenile court should have invoked certain exceptions to termination; and (4) the juvenile court should have granted her additional time to work toward reunification.  OPINION HOLDS: Because the child could not be returned to her custody, the mother was not in a position to safely parent the children, the court acted appropriately in not invoking exceptions to termination, and additional time would not resolve the court’s concerns, we affirm.

Case No. 19-1778:  In the Interest of G.E., Minor Child

Filed Mar 04, 2020

View Opinion No. 19-1778

            Appeal from the Iowa District Court for Polk County, William A. Price, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J.  (9 pages)

            The mother and father separately appeal the juvenile court’s order terminating their parental rights to the child.  OPINION HOLDS: The State proved the statutory grounds for terminating the parental rights of both parents, and termination is in the child’s best interest.  Therefore, we affirm the termination of the parental rights of both parents.

Case No. 19-1783:  In the Interest of E.P., Minor Child

Filed Mar 04, 2020

View Opinion No. 19-1783

            Appeal from the Iowa District Court for Fayette County, Linnea M.N. Nicol, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J.  (9 pages)

            A mother appeals the termination of her parental rights to her minor child under Iowa Code chapter 232 (2019).  On appeal, the mother argues the State failed to prove grounds for termination, she was not provided sufficient reunification services, an exception should be applied to prevent termination, and she should have been granted a six-month extension.  OPINION HOLDS: We conclude the State proved grounds for termination under section 232.116(1)(h); the mother waived her reasonable-efforts claim by failing to raise it before the termination hearing; no permissive exceptions apply to prevent termination; and a six-month extension is not warranted based on the facts here.  We affirm.

Case No. 19-1806:  In the Interest of C.Y., Minor Child

Filed Mar 04, 2020

View Opinion No. 19-1806

            Appeal from the Iowa District Court for Sioux County, Daniel P. Vakulskas, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J.  (6 pages)

            A father appeals the termination of his parental rights.  He argues clear and convincing evidence has not been produced to show the statutory grounds for terminating his parental rights and argues the State has not met its burden to make reasonable efforts to return the child to his care.  OPINION HOLDS: Clear and convincing evidence supported terminating the father’s parental rights.  The father’s argument regarding reasonable efforts by the State to return the child to his care was not preserved for our review.  We affirm.

Case No. 19-1880:  In the Interest of A.P., Minor Child

Filed Mar 04, 2020

View Opinion No. 19-1880

            Appeal from the Iowa District Court for Pottawattamie County, Eric J. Nelson, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (9 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: Upon our de novo review of the record, we find the State provided reasonable reunification services to the mother as required in chapter 232, and the State proved by clear and convincing evidence grounds for terminating her parental rights under Iowa Code section 232.116(1)(h) (2019).  We also conclude termination of her parental rights is in the child’s best interests and those interests are not served by granting additional time for reunification or application of a permissive factor to avoid termination.  For all these reasons, we affirm the juvenile court’s order terminating the mother’s parental rights in all respects.

Case No. 19-1946:  In the Interest of K.W., K.W., A.M., and D.M., Minor Children

Filed Mar 04, 2020

View Opinion No. 19-1946

            Appeal from the Iowa District Court for Woodbury County, Mary L. Timko, Associate Juvenile Judge.  AFFIRMED.  Considered by Mullins, P.J., May, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (7 pages)

            A mother appeals the termination of her parental rights to four children, contending (1) the State failed to prove the grounds for termination cited by the juvenile court; (2) the juvenile court should have granted her additional time to work towards reunification; and (3) termination was not in the children’s best interests.  OPINION HOLDS: We affirm the decision of the juvenile court to terminate the mother’s parental rights.

Case No. 19-1958:  In the Interest of R.H., Minor Child

Filed Mar 04, 2020

View Opinion No. 19-1958

            Appeal from the Iowa District Court for Jasper County, Steven J. Holwerda, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  (8 pages)

            A mother and father separately appeal the juvenile court decision terminating their parental rights to their child.  Each contends the State failed to prove the grounds for termination by clear and convincing evidence.  The father contends termination of his parental rights is not in the best interests of the child.  Both parents ask for an additional six months to achieve reunification.  OPINION HOLDS: We affirm on both appeals.

Case No. 19-1985:  In the Interest of J.C., J.J., and G.J., Minor Children

Filed Mar 04, 2020

View Opinion No. 19-1985

            Appeal from the Iowa District Court for Polk County, Kimberly Ayotte, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J.  (9 pages)

            The mother of J.J., G.J., and J.C. and the father of J.C. separately appeal the termination of their parental rights to their respective children.  The mother and father both challenge whether the statutory grounds for termination have been met, maintain termination is not in the best interest of their respective children, argue an exception precludes termination, and assert the children should have been placed in the custody of one of the grandmothers when their parental rights were terminated.  The mother also maintains she should have been given additional time to work toward reunification.  OPINION HOLDS: We affirm the termination of the mother’s and the father’s parental rights.

Case No. 19-1995:  In the Interest of R.B., Minor Child

Filed Mar 04, 2020

View Opinion No. 19-1995

            Appeal from the Iowa District Court for Fayette County, Linnea M.N. Nichol, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Schumacher, J.  (8 pages)

            A mother appeals from a district court order terminating her parental rights over her daughter. OPINION HOLDS: The district court’s denial of an extension was appropriate in light of several continuances and the mother’s positive test for methamphetamine one week prior to the termination hearing.  We agree with the district court’s finding that termination is in R.B.’s best interests, and we decline to avoid the termination by employing the permissive exception in Iowa Code section 232.116(3)(c) (2019).

Case No. 19-2005:  In the Interest of M.D., Minor Child

Filed Mar 04, 2020

View Opinion No. 19-2005

            Appeal from the Iowa District Court for Linn County, Cynthia S. Finley, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., Mullins, J., and Carr, S.J.  Opinion by Carr, S.J.  (4 pages)

            A mother appeals the termination of her parental rights to her child.  OPINION HOLDS: Clear and convincing evidence shows the child cannot be returned to the mother’s custody without exposing the child to the threat of probable harm based on the mother’s continued substance use.  Termination is in the child’s best interests, and nothing in the record supports a finding that the child is so bonded with the mother that terminating her parental rights would be detrimental to the child.  Because nothing in the record indicates the need for removal would be eliminated if the mother were granted additional time, we affirm the termination of her parental rights.

Case No. 19-2024:  In the Interest of A.H. and J.H., Minor Children

Filed Mar 04, 2020

View Opinion No. 19-2024

            Appeal from the Iowa District Court for Mills County, Scott Strait, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., Ahlers, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (9 pages)

                A father appeals the juvenile court order terminating his parental rights.  OPINION HOLDS:  We conclude the juvenile court did not abuse its discretion in denying the father’s motion to reopen the record.  There is clear and convincing evidence to support termination under Iowa Code section 232.116(1)(h) (2019).  It would not be in the children’s best interests to further delay this case.  Additionally, none of the factors in section 232.116(3) should be applied to prevent termination.  We affirm the decision of the juvenile court.

Case No. 19-2032:  In the Interest of A.N., Minor Child

Filed Mar 04, 2020

View Opinion No. 19-2032

            Appeal from the Iowa District Court for Warren County, Brendan Greiner, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by May, J.  (6 pages)

            A father appeals the juvenile court’s termination of his parental rights.  OPINION HOLDS: We conclude termination is appropriate under Iowa law and consistent with the child’s best interest.

Case No. 19-2092:  In the Interest of A.D., Minor Child

Filed Mar 04, 2020

View Opinion No. 19-2092

            Appeal from the Iowa District Court for Polk County, Colin J. Witt, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J.  (6 pages)

            A father appeals the termination of his parental rights to his three-year-old daughter.  He contends the juvenile court should have given him an additional six months to work toward reunification and it was not in his daughter’s best interests to terminate his rights.  OPINION HOLDS: A.D. has spent two of her three years of life outside of the father’s care.  After a previous child-in-need-of-assistance case was closed, the father had a severe relapse into alcoholism, resulting in A.D. being inadequately supervised.  Although the father has made recent efforts toward sobriety and stability, we are not convinced he has demonstrated his ability to maintain long-term sobriety outside the prison or treatment setting.  Under these circumstances, we are not confident the need for removal would no longer exist in six months.  We further find it was in A.D.’s best interests to terminate the father’s rights and pursue a permanent home for her after so long out of his care.  We affirm. 

Case No. 19-2099:  In the Interest of A.R., Minor Child

Filed Mar 04, 2020

View Opinion No. 19-2099

            Appeal from the Iowa District Court for Pottawattamie County, Scott Strait, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., Mullins, J., and Blane, S.J.  Opinion by Blane, S.J.  (5 pages)

            A father appeals the termination of his parental rights to one child, challenging the statutory grounds for termination.  OPINION HOLDS: Upon our de novo review, we conclude the State proved the grounds by clear and convincing evidence.  Therefore, we affirm.  

Case No. 20-0008:  In the Interest of K.S., Minor Child

Filed Mar 04, 2020

View Opinion No. 20-0008

            Appeal from the Iowa District Court for Sac County, Joseph B. McCarville, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., Mullins, J., and Potterfield, S.J.  Opinion by Potterfield, S.J.  (4 pages)

            The mother challenges the termination of her parental rights to her child, K.S.  OPINION HOLDS: Having considered each of the issues raised by the mother, we affirm the termination of her parental rights.

Case No. 20-0012:  In the Interest of K.L., Minor Child

Filed Mar 04, 2020

View Opinion No. 20-0012

            Appeal from the Iowa District Court for Scott County, Christine Dalton Ploof, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (6 pages)

            A mother appeals the termination of her parental rights to, K.L., one of her four children.  OPINION HOLDS: Although the risk of adjudicatory harm to the three oldest children is low, clear and convincing evidence shows K.L. would be at risk if returned to the mother’s care, satisfying the grounds for termination under Iowa Code section 232.116(1)(h) (2019).  Because the State made reasonable efforts to return the child to the mother’s custody and granting the mother additional time would not eliminate the need for the child’s removal, we affirm the termination of the mother’s parental rights to K.L.

Case No. 20-0048:  In the Interest of C.B., Minor Child

Filed Mar 04, 2020

View Opinion No. 20-0048

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J.  (4 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.

Case No. 17-0390:  Gary Lee Alexander v. State of Iowa

Filed Feb 19, 2020

View Opinion No. 17-0390

            Appeal from the Iowa District Court for Black Hawk County, Joel Dalrymple, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (6 pages)

            Gary Alexander appeals the denial of his application for postconviction relief (PCR) following his conviction of one count of second-degree sexual abuse and two counts of third-degree sexual abuse.  OPINION HOLDS: Upon the record made below, we have no choice but to affirm the denial of Alexander’s PCR application.

Case No. 18-0130:  State of Iowa v. Jeffrey Daniel Krone

Filed Feb 19, 2020

View Opinion No. 18-0130

            Appeal from the Iowa District Court for Woodbury County, Todd A. Hensley, District Associate Judge.  CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED FOR RESENTENCING.  Heard by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (12 pages)

            Jeffrey Krone appeals his conviction and sentence for possession of a controlled substance—methamphetamine—following the entry of his guilty plea.  OPINION HOLDS: Krone did not move in arrest of judgment to preserve for appellate review the alleged defects in his guilty plea.  Thus, we do not consider the issue.  Because the record is undeveloped, we cannot decide Krone’s claims he received ineffective assistance of counsel.  Finally, we vacate Krone’s sentence and remand the case to the district associate court for resentencing consistent with this opinion.  We affirm in all other respects.

Case No. 18-0774:  J&R Transport, Inc. v. Navistar, Inc. and Thompson Truck and Trailer, Inc., f/k/a Hawkeye Truck and Trailer

Filed Feb 19, 2020

View Opinion No. 18-0774

            Appeal from the Iowa District Court for Linn County, Christopher L. Bruns, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (12 pages)

            Plaintiff purchased heavy-duty trucks manufactured by one defendant and sold by another.  Plaintiff claims the trucks were defective.  Plaintiff claims the district court erred in granting summary judgment as to its claims of breach of warranty and breach of contract.  OPINION HOLDS: The district court properly granted summary judgment in favor of defendants.

Case No. 18-0853:  State of Iowa v. Chung Chris Lo

Filed Feb 19, 2020

View Opinion No. 18-0853

            Appeal from the Iowa District Court for Dallas County, Richard B. Clogg, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (14 pages)

            Chung Chris Lo appeals his conviction for first-degree fraudulent practice.  OPINION HOLDS: I. Lo fails to show his trial counsel was ineffective in failing to challenge the fraudulent practice statute as unconstitutionally vague and therefore void.  The term “participating” as used in the statute is of common usage and understandable.  And the statute is not vague as applied to Lo because the State was not required to show that Lo was a provider “participating” in the Medicaid program, only that he aided and abetted a provider participating in the program.  II. Sufficient evidence supports Lo’s conviction because it shows he failed to disclose that he was permanently excluded from participation in the Medicaid program while aiding and abetting his wife and nephew, who owned a company that was a Medicaid provider.  III. Lo cannot show the trial court’s omission of a portion of his requested instruction on “mistake of law” prejudiced him.  IV. The trial court did not abuse its discretion in denying Lo’s motion for mistrial because testimony by a State witness that Lo and his wife were involved in a scheme to defraud Medicaid did not render the jury unable to reach an impartial verdict.

Case No. 18-1147:  State of Iowa v. Douglas K. Lindaman

Filed Feb 19, 2020

View Opinion No. 18-1147

            Appeal from the Iowa District Court for Floyd County, Gregg R. Rosenbladt, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J. (14 pages)

            Douglas Lindaman appeals a jury verdict finding him guilty of assault with intent to commit sexual abuse.  He challenges the selection of the jury, criticizes the court’s allowance of expert testimony, and contests his sentence and the charging instrument.  OPINION HOLDS: On the jury-selection issue, we find Lindaman unable to show prejudice.  We see no other ground for reversal.  We thus affirm his conviction. 

Case No. 18-1328:  State of Iowa v. Bryan Giovanni Bejarano Moreno

Filed Feb 19, 2020

View Opinion No. 18-1328

            Appeal from the Iowa District Court for Muscatine County, Stuart P. Werling and Patrick A. McElyea, Judges.  CONVICTIONS AFFIRMED, SENTENCE VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., Mullins, J., and Gamble, S.J.  Opinion by Gamble, S.J. (9 pages)

            Bryan Bejarano Moreno appeals his following his conviction and sentence for first-degree burglary.  He claims counsel was ineffective and the district court erred in awarding restitution without determining his ability to pay and requiring him to request an ability-to-pay hearing with respect to his appellate attorney fees.  OPINION HOLDS: Counsel was not ineffective.  The district court erred in ordering category-two restitution without making an ability-to-pay determination.  The district court erred in including language in the sentencing order that requires a defendant request an ability-to-pay hearing with respect to appellate attorney fees.

Case No. 18-1597:  State of Iowa v. Courtney Allen Kellum

Filed Feb 19, 2020

View Opinion No. 18-1597

            Appeal from the Iowa District Court for Lee (South) County, Michael J. Schilling, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (4 pages)

            Courtney Kellum appeals the prison sentence imposed following his guilty pleas to delivery of methamphetamine and willful injury causing bodily injury.  Kellum argues the district court was “unreasonable in ignoring the recommendations of the Department of Corrections and the prosecutor.”  In response, the district court pointed to Kellum’s age and criminal history—thirty-four years old; six thefts; four assaults; three interference with official acts; ten alcohol-related offenses; and one controlled substance offense.  OPINION HOLDS: First, a sentencing court does not abuse its discretion by refusing to grant probation even if recommended by the presentence investigation report and the parties.  Second, the district court decided on incarceration after considering Kellum’s age, criminal history, employment circumstances, family circumstances, the nature of the offenses, and the information contained in the presentence investigation report.  Kellum fails to overcome the presumption the sentencing court properly exercised its discretion.

Case No. 18-1750:  In the Matter of the Matthew Brandon Waltman Irrevocable Trust

Filed Feb 19, 2020

View Opinion No. 18-1750

            Appeal from the Iowa District Court for Black Hawk County, Joel A. Dalrymple, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (8 pages)

            Beneficiary Karen Richter Nutkiewicz seeks to invalidate a court order approving a plan to make property distributions and then terminate a family farm trust.  Karen twice filed motions to reconsider the district court’s order, contending a due process claim she did not receive “any notice whatsoever” of the hearing.  The district court refused to reconsider its ruling.  In addition, Karen’s appellate brief failed to address how she preserved error for appellate review.  OPINION HOLDS: Where an omission does not hinder our consideration of the issue raised, we will decide it on the merits.  Next, on Karen’s due process contention, because we cannot find in the record where she received a ruling on a constitutional claim, we deem that issue waived and, accordingly, give it no further consideration. Finally, because Karen’s attorney of record received notification in compliance with rule 1.442(2), we affirm the district court’s denial of her motions to reconsider.

Case No. 18-1932:  GreatAmerica Financial Services Corporation v. Personal Touch Medical Mangement, Inc. and Marisol Aponte

Filed Feb 19, 2020

View Opinion No. 18-1932

            Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.  REVERSED AND REMANDED.  Heard by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  Special concurrence by May, J.  Concurrence in part and dissent in part by Greer, J.  (19 pages)

            The defendants appeal an adverse summary judgment ruling in this breach-of-contract action.  OPINION HOLDS: Because GreatAmerica Financial Services Corp. has not proved a breach of contract as a matter of law, we reverse and remand for further proceedings.  In addition, because summary judgment was improperly granted, we vacate the award of attorney fees.  SPECIAL CONCURRENCE ASSERTS: We should reverse for three reasons.  First, the Software Finance Agreement should be enforced as written, and the defendants were not named parties to the Agreement.  Second, the current record does not support reformation.  Third, under the facts of this case, ratification cannot substitute for reformation.  PARTIAL DISSENT ASSERTS: I respectfully dissent in part; I would affirm the district court ruling granting GreatAmerica summary judgment against Personal Touch Medical Management, Inc. (PTMM) but, like the majority, would reverse as to Marisol Aponte. By its actions, PTMM ratified and agreed to be bound to the agreement for such software; ratification of that contract occurred when PTMM accepted the software and paid GreatAmerica for the software over many months.  We have no similar record as to Aponte or that she agreed to be personally liable.

Case No. 18-1995:  State of Iowa v. Patrick F. Williams

Filed Feb 19, 2020

View Opinion No. 18-1995

            Appeal from the Iowa District Court for Polk County, Jeffrey Farrell, Judge.  AFFIRMED.  Considered by Tabor, P.J., Schumacher, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (5 pages)

            Patrick Williams appeals his convictions for possession of methamphetamine and driving while barred.  OPINION HOLDS:  We determine Williams’s claim of ineffective assistance of counsel should be preserved for possible postconviction-relief proceedings.  We affirm Williams’s convictions.

Case No. 18-2039:  Richard J. Wermerskirchen and Carol M. Wermerskirchen v. Canadian National Railroad, a/k/a CN, a/k/a CN Railway; Chicago Central & Pacific Railroad, a/k/a CCP Illinois Central Railroad Company; Tim Dorsey, and Josh Yokem

Filed Feb 19, 2020

View Opinion No. 18-2039

            Appeal from the Iowa District Court for Black Hawk County, Linda M. Fangman, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (27 pages)

            Richard Wermerskirchen suffered serious injuries when a Chicago, Central & Pacific Railroad Company (CCP) freight train struck the road grader he was operating at a railroad crossing in rural Black Hawk County.  Wermerskirchen sued for negligence.  The district court granted the CCP’s motion for summary judgment on claims of failure to keep a proper lookout and failure to slow or stop the train.  The court decided the Federal Railroad Safety Act of 1970 (FRSA) preempted those common law claims.  The court submitted the case to a jury on Wermerskirchen’s claim that the crew failed to sound an audible warning.  The jury found no negligence.  Wermerskirchen appeals both the summary judgment and trial rulings.  OPINION HOLDS: Deciding whether the crew kept a proper lookout, or failed to slow or stop, and deciding whether the dense fog affected its ability to do so are fact questions for a jury to decide.  Not all state tort claims that touch on the topic of a train’s duty to brake to avoid a collision could be preempted by the federal regulations setting speed limits.  In addition, the district court did not abuse its discretion in excluding the near-miss evidence.  Finally, we find no error in the six jury instructions Wermerskirchen unsuccessfully challenged.

Case No. 18-2139:  State of Iowa v. Tiffani Marie Finch

Filed Feb 19, 2020

View Opinion No. 18-2139

            Appeal from the Iowa District Court for Jasper County, Steven J. Holwerda, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (8 pages)

            Tiffani Finch appeals from the district court’s judgment and sentencing finding her guilty of operating a motor vehicle without owner’s consent, in violation of Iowa Code sections 714.1 and 714.7 (2018).  She contends she had the owner’s consent to use the vehicle.  OPINION HOLDS: Because the district court correctly decided the owner, the ward in a guardianship and conservatorship, could not legally give another person permission to drive the truck, we reject Finch’s request for a new trial.  We affirm the conviction. 

Case No. 18-2141:  State of Iowa v. Tony Lopez

Filed Feb 19, 2020

View Opinion No. 18-2141

            Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.  AFFIRMED.  Considered by Doyle, P.J., Tabor, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (5 pages)

            Tony Lopez appeals the district court decision denying his request to withdraw his guilty plea to first-degree robbery.  OPINION HOLDS:  The evidence shows the defendant had full knowledge of the charge against him, as well as his rights and the consequences of a plea of guilty.  We conclude the district court did not abuse its discretion in finding Lopez made a knowing and voluntary plea.  We affirm the district court’s decision denying Lopez’s motion to withdraw his guilty plea.

Case No. 19-0072:  State of Iowa v. Brett Eugene Noble

Filed Feb 19, 2020

View Opinion No. 19-0072

            Appeal from the Iowa District Court for Muscatine County, Tom Reidel, Judge.  AFFIRMED. Considered by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.  Opinion by Vaitheswaran, P.J.  (6 pages)

            On appeal from a remand order, Brett Noble contends (1) “the district court improperly applied existing law when it vacated [his] voluntary manslaughter conviction and resentenced [him] on attempted murder in a ‘one homicide’ case, resulting in an illegal sentence” and (2) his “appellate and resentencing counsel were ineffective for not adequately contesting the court of appeals decision that incorrectly instructed vacating voluntary manslaughter instead of attempted murder at resentencing.”  OPINION HOLDS: We affirm Noble’s amended sentence.

Case No. 19-0076:  State of Iowa v. Jesse Lee Waterland

Filed Feb 19, 2020

View Opinion No. 19-0076

            Appeal from the Iowa District Court for Jasper County, Steven J. Holwerda, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (13 pages)

            A defendant appeals convictions for operating while intoxicated (OWI), third offense, and felony eluding.  The defendant pleaded guilty to felony eluding and OWI, third offense.  On appeal, he alleges procedural defects in his plea proceedings and error in the denial of his motion in arrest of judgment.  OPINION HOLDS: We find his procedural arguments to be unpreserved and we find no abuse of discretion in the denial of his motion in arrest of judgment and affirm.

Case No. 19-0091:  State of Iowa v. William J. Kirchner Jr.

Filed Feb 19, 2020

View Opinion No. 19-0091

            Appeal from the Iowa District Court for Des Moines County, Mary Ann Brown and Mark E. Kruse, Judges.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J. (6 pages)

            William Kirchner Jr. appeals after pleading guilty to possession of a firearm by a felon and possession of a controlled substance, third offense.  OPINION HOLDS: I. Because the court adequately advised Kirchner of his need to file a timely motion in arrest of judgment to challenge his pleas and he failed to do so, he cannot challenge the voluntariness of his pleas on direct appeal.  II. Counsel did not breach a duty in failing to move in arrest of judgment challenging the factual basis for Kirchner’s plea to possession of a controlled substance.  III. The court acted within its discretion in refusing to allow Kirchner to withdraw his plea because the record shows he entered his plea knowingly and voluntarily without fear or persuasion. 

Case No. 19-0127:  In the Matter of D.N., Alleged to Be Seriously Mentally Impaired

Filed Feb 19, 2020

View Opinion No. 19-0127

            Appeal from the Iowa District Court for Story County, Steven P. Van Marel, District Associate Judge.  AFFIRMED.  Considered by Mullins, P.J., Schumacher, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (3 pages)

            D.N. appeals from a finding of serious mental impairment.  OPINION HOLDS: Because we have no recording, transcript, or statement of the proceedings of the contested hearing, we are required to affirm the district court’s decision.

Case No. 19-0209:  State of Iowa v. Montez McClain

Filed Feb 19, 2020

View Opinion No. 19-0209

            Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J. (4 pages)

            Montez McClain appeals the sentence imposed upon his conviction, following a guilty plea, of second-degree robbery on constitutional grounds.  OPINION HOLDS: We conclude the sentence imposed does not amount to cruel and unusual punishment or violate equal protection.  We affirm the sentence imposed.

Case No. 19-0224:  In re the Marriage of Torres and Reyes-Pineda

Filed Feb 19, 2020

View Opinion No. 19-0224

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED AS MODIFIED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (7 pages)

            The former wife appeals the alimony award of one dollar in the decree dissolving her marriage.  She contends the district court erred in giving her a placeholder award on the belief she can file a modification after the award of child support terminates due to the children reaching the age of majority.  OPINION HOLDS: In the future, the wife would be unable to show that the termination of child support qualified as a change in circumstances outside the contemplation of the court issuing the dissolution decree.  So we find it equitable to modify the decree now to order spousal support to commence at that time.  The decree is affirmed as modified. 

Case No. 19-0260:  Shawn Shelton v. The Trust Created by the Joint Trust Agreement of Larry E. Shelton and Katherine Shelton, Mary Joleen Pavelka, Ann Jetora Mueller f/k/a Jetora Ann Mueller, and Jan Marie Gwinn

Filed Feb 19, 2020

View Opinion No. 19-0260

            Appeal from the Iowa District Court for Polk County, David May, Judge.  REVERSED AND REMANDED WITH INSTRUCTIONS.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  May, J., takes no part.  Opinion by Doyle, P.J.  (9 pages)

            Defendant beneficiaries, individually and in their capacity as co-trustees of their parents’ trust, appeal the district court’s ruling denying their motion for summary judgment against their plaintiff brother, Shawn Shelton.  OPINION HOLDS: Because Shawn failed to commence his action within one year of his mother’s death, his claim is barred under Iowa Code section 633A.3108 (2017).  The district court erred in denying the Defendants’ motion for summary judgment on this issue.  So we reverse the district court’s summary judgment ruling and remand to the district court for entry of summary judgment for the Defendants.

Case No. 19-0528:  Consuela M. Brown v. Steven L. Roquet

Filed Feb 19, 2020

View Opinion No. 19-0528

            Appeal from the Iowa District Court for Wapello County, Lucy J. Gamon, Judge.  AFFIRMED AS MODIFIED AND REMANDED.  Heard by Tabor, P.J., and Greer and Ahlers, JJ.  Opinion by Greer, J.  Partial Dissent by Ahlers, J.  (15 pages)

            Consuela Brown appeals the district court order imposing a child support obligation on Steven Roquet.  Consuela argues the court should not have reduced his past child support obligation based on a personal injury settlement the child received, the court should have assessed a higher interest rate on the past payments, and the court should award her appellate attorney fees.  OPINION HOLDS: We agree that the district court should not have reduced the back child support award by half of the amount of the settlement.  We conclude the court should have imposed a ten percent interest rate, but this rate applies only if Steven is over thirty days behind on a child support payment.  Steven shall be responsible for Consuela’s’ appellate attorney fees.  We remand for entry of an order consistent with our opinion.  PARTIAL CONCURRENCE, PARTIAL DISSENT ASSERTS: Upon review of the circumstances of this case, without being bound to the model used by the district court, I find no error in the amount of back child support awarded by the district court.  Because I would affirm on that issue, I also dissent with regard to awarding the mother appellate attorney fees.  I concur in the decision reached on the issue of the interest rate to be used on the back child support award.

Case No. 19-0567:  In the Matter of P.K., Alleged to Be Seriously Mentally Impaired

Filed Feb 19, 2020

View Opinion No. 19-0567

            Appeal from the Iowa District Court for Johnson County, Sean W. McPartland, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Schumacher, J.  (13 pages)

            An inmate appeals from a ruling finding him seriously mentally impaired and imposing involuntary commitment.  He argues the State provided insufficient evidence to meet its burden.   OPINION HOLDS: Clear and convincing evidence supports the district court’s findings pursuant to Iowa Code chapter 229 (2019).

Case No. 19-0604:  State of Iowa v. Charles Henry Eberle

Filed Feb 19, 2020

View Opinion No. 19-0604

            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 Schumacher, J.  (6 pages)

            Charles Eberle appeals his sentences for operating while intoxicated and two counts of possession of a controlled substance, claiming the district court did not give sufficient reasons for his sentence.  OPINION HOLDS: We conclude the sentencing order was sufficient, and we affirm the decision of the district court.

Case No. 19-0697:  Valerie Goldston v. Zebediah Goldston

Filed Feb 19, 2020

View Opinion No. 19-0697

            Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  (6 pages)

            Zebediah Goldston appeals a final domestic abuse protective order issued pursuant to Iowa Code chapter 236 (2019).  OPINION HOLDS: Because we find Valerie Goldston sufficiently established an incident of domestic abuse assault, we affirm.

Case No. 19-0740:  State of Iowa v. Saleh Ali Nasr

Filed Feb 19, 2020

View Opinion No. 19-0740

            Appeal from the Iowa District Court for Johnson County, Christopher L. Bruns, Judge.  SENTENCE VACATED AND REMANDED.  Considered by Vaitheswaran, P.J., May, J., and Scott, S.J.  Opinion by Scott, S.J.  (6 pages)

            Saleh Nasr appeals the sentence imposed upon his criminal conviction, arguing the court abused its discretion by employing a fixed sentencing policy.  OPINION HOLDS: While this is a close case, the court’s words, at a minimum, give the appearance of a fixed sentencing policy.  As a result, we choose to take the cautious route and vacate the sentence and remand for resentencing.

Case No. 19-0747:  State of Iowa v. Matthew Washington

Filed Feb 19, 2020

View Opinion No. 19-0747

            Appeal from the Iowa District Court for Black Hawk County, Patrick Wegman, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., Schumacher, J., and Blane, S.J.  Opinion by Blane, S.J. (5 pages)

            The defendant contends the court failed to exercise its discretion in imposing a fine alleging the court did not know it had discretion to suspend it.  OPINION HOLDS: The record supports that the court exercised its discretion and decided not to suspend the fine.

Case No. 19-1109:  Bob Rush, Brian Meyer, Rick Olson, Mary Mascher, Art Staed, Liz Bennett, Mark Smith, Jo Oldson, Mary Wolfe, Marti Anderson, Leon Spies, and Martin A. Diaz v. Governor Kimberly K. Reynolds, Glen Dickinson, Leslie Hickey and Dan Huitink

Filed Feb 19, 2020

View Opinion No. 19-1109

            Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.  AFFIRMED.  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. (42 pages)

            The plaintiffs appeal the district court’s dismissal of their lawsuit challenging divisions XIII and XIV of Senate File (SF) 638.  On appeal, the plaintiffs assert specific arguments regarding standing for each group—lawyers, commissioners, and legislators.  In the alternative, they argue we should apply the exception to standing and waive the standing requirement for all of them because the claimed violations of the Iowa constitution, which occurred in the passage of the legislation, are of great public importance.  If we determine they have standing and remand to the district court, the plaintiffs ask that we grant a temporary injunction to stay the implementation of the challenged portions of SF 638 until the district court can rule on the underlying merits of their claims.  OPINION HOLDS: We agree with the district court that the plaintiffs have not established any group has standing.  We conclude the issues raised by the plaintiffs are not of such great public importance as to waive traditional standing requirements.  We need not address the temporary-injunction issue.  We affirm the district court.  PARTIAL DISSENT ASSERTS: I respectfully dissent in part.  I agree with my colleagues in the majority that none of the groups before us—commissioners, lawyers, or legislators—have standing to challenge divisions XIII and XIV of SF 638.  However, I believe the issues raised by these plaintiffs are of great public importance and would apply the exception to standing.  I would reverse the district court’s dismissal of their suit and remand for proceedings on the merits.

Case No. 19-1151:  In the Interest of A.R., Minor Child

Filed Feb 19, 2020

View Opinion No. 19-1151

            Appeal from the Iowa District Court for Polk County, Romonda Belcher, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  Special Concurrence by Tabor, J.  (17 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: Upon our de novo review of the record, the mother’s constitutional due process rights were not violated when the court denied her request to be physically present at the termination-of-parental-rights hearing.  Similarly, Iowa Code section 622.82 (2019) did not require the court to grant the mother’s request to be present at the hearing, and we find no error or abuse of the court’s discretion in denying the mother’s motion.  Finally, we agree with the juvenile court that the State proved by clear and convincing evidence that termination of the mother’s parental rights was in the child’s best interests and the exceptions to overcome termination of her rights should not be applied based on the facts of the case.  So we affirm the juvenile court’s ruling in all respects.  SPECIAL CONCURRENCE ASSERTS: I write separately to concur in the result but note if the mother’s allegation a representative of the department of corrections declined to transport the mother to the termination hearing in the same county where she was incarcerated, the district court failed to use its discretion under Iowa Code section 622.82 to make the decision, which is within its purview, not the executive branch’s.  The record is inadequate to demonstrate how the determination was made, so I concur in the result.

Case No. 19-1206:  Michael Jon Toom v. Sarah Joann Opiol

Filed Feb 19, 2020

View Opinion No. 19-1206

            Appeal from the Iowa District Court for Linn County, Christopher L. Bruns, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  (4 pages)

            Michael Toom seeks a custody order for joint legal custody and physical care of his child with Sarah Opiol.  OPINION HOLDS: Because we find Iowa does not have jurisdiction to make an initial child-custody determination under the Uniform Child Custody Jurisdiction and Enforcement Act, we affirm.

Case No. 19-1732:  In the Interest of N.G., Minor Child

Filed Feb 19, 2020

View Opinion No. 19-1732

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Schumacher, J.  (10 pages)

            An adoptive mother and minor child appeal a district court order terminating parental rights.  OPINION HOLDS: The State met its statutory burden under Iowa Code section 232.116(1)(f) (2019).  Termination is in N.G.’s best interests, and the court below did not err in refraining from applying one of the permissive exceptions in Iowa Code section 232.116(3).  We affirm the termination.

Case No. 19-1735:  In the Interest of A.M. and J.C., Minor Children

Filed Feb 19, 2020

View Opinion No. 19-1735

            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. 

Case No. 19-1789:  Thomas J. Duff v. Kimberly K. Reynolds, Glen Dickinson, Leslie Hickey and Dan Huitink

Filed Feb 19, 2020

View Opinion No. 19-1789

            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.

Case No. 19-1969:  In the Interest of L.L., Minor Child

Filed Feb 19, 2020

View Opinion No. 19-1969

            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.

Case No. 19-2030:  In the Interest of P.K., Minor Child

Filed Feb 19, 2020

View Opinion No. 19-2030

            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). 

Case No. 17-1994:  State of Iowa v. Lang Donald Leonard

Filed Feb 05, 2020

View Opinion No. 17-1994

            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). 

Case No. 18-0374:  State of Iowa v. Alex Cosmo Marcelino

Filed Feb 05, 2020

View Opinion No. 18-0374

            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.

Case No. 18-0511:  State of Iowa v. David L. Levy Jr.

Filed Feb 05, 2020

View Opinion No. 18-0511

            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.

Case No. 18-0605:  State of Iowa v. Daniel Joseph Thurman, III

Filed Feb 05, 2020

View Opinion No. 18-0605

            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.

Case No. 18-0859:  State of Iowa v. Joseph Michael Finn, II

Filed Feb 05, 2020

View Opinion No. 18-0859

            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.

Case No. 18-0931:  State of Iowa v. Jerry J. Oden, Jr.

Filed Feb 05, 2020

View Opinion No. 18-0931

            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. 

Case No. 18-1007:  Allison Brady v. Richard Randle

Filed Feb 05, 2020

View Opinion No. 18-1007

            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.

Case No. 18-1085:  State of Iowa v. Tyler Wayne Davis

Filed Feb 05, 2020

View Opinion No. 18-1085

            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.

Case No. 18-1110:  James Lee Blair-Bey v. Iowa State Penitentiary

Filed Feb 05, 2020

View Opinion No. 18-1110

            Appeal from the Iowa District Court for Lee (North) County, Mark Kruse, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (3 pages)

            James Lee Blair-Bey contends the district court erred in summarily dismissing his petition for writ of habeas corpus.  OPINION HOLDS: Finding no error, we affirm.

Case No. 18-1176:  State of Iowa v. JD Ray Anderson

Filed Feb 05, 2020

View Opinion No. 18-1176

            Appeal from the Iowa District Court for Woodbury County, Julie A. Schumacher, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Gamble, S.J.  Schumacher, J., takes no part.  Opinion by Gamble, S.J. (10 pages)

            JD Anderson appeals his conviction for domestic abuse assault, third offense.  He claims he received ineffective assistance of counsel and the district court erred in admitting a 911 call and corresponding transcript.  OPINION HOLDS: Counsel was not ineffective for not objecting to the inclusion of jury instructions for lesser-included offenses or a jury instruction regarding Anderson’s out-of-court statements.  We preserve Anderson’s ineffective-assistance claim regarding counsel’s failure to make a foundational objection to the 911 call.  The 911 call qualified as present-sense-impression and excited-utterance exceptions to the rule against hearsay.

Case No. 18-1341:  State of Iowa v. Gary Alan Beach

Filed Feb 05, 2020

View Opinion No. 18-1341

            Appeal from the Iowa District Court for Cerro Gordo County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.  Opinion by Vaitheswaran, P.J.  (4 pages)

            Gary Alan Beach appeals his sentences for possession of a controlled substance (third offense), unlawful possession of a prescription drug, and second-degree harassment, arguing that the court failed to provide adequate reasons for imposing consecutive sentences.  OPINION HOLDS: Because the court’s statement of reasons is sufficiently comprehensive to permit appellate review of the court’s discretionary action, we affirm.

Case No. 18-1527:  State of Iowa v. James H. Exline

Filed Feb 05, 2020

View Opinion No. 18-1527

            Appeal from the Iowa District Court for Greene County, James M. Drew, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Vaitheswaran, P.J.  (9 pages)

            James H. Exline was twice tried for second- and third-degree sexual abuse of a child, with the first trial ending in a mistrial and the second resulting in jury findings of guilt charges.  On appeal, Exline argues the district court (1) abused its discretion in allowing the jury to hear that the child died; (2) erred in admitting hearsay evidence; and (3) abused its discretion in denying his motion to postpone the second trial.  OPINION HOLDS: We affirm Exline’s convictions of second-degree and third-degree sexual abuse. 

Case No. 18-1545:  Brian and Lisa Terry v. Megan Dorothy

Filed Feb 05, 2020

View Opinion No. 18-1545

            Appeal from the Iowa District Court for Story County, Bethany Currie, Judge.  REVERSED AND REMANDED.  Heard by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  Dissent by May, J.  (15 pages)

            Plaintiffs appeal the district court’s grant of summary judgment in favor of defendant on their gross negligence claims.  OPINION HOLDS: We reverse the grant of summary judgment in favor of the defendant and remand for further proceedings.  DISSENT ASSERTS: The district court properly granted summary judgment based on established contract principles.

Case No. 18-1549:  State of Iowa v. Tremayne Thomas

Filed Feb 05, 2020

View Opinion No. 18-1549

            Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.  AFFIRMED.  Heard by Bower, C.J., and Greer and Ahlers, JJ.  Tabor, J., takes no part.  Opinion by Bower, C.J. (11 pages)

            Tremayne Thomas was convicted of first-degree murder and abuse of a corpse.  On appeal, he argues there was insufficient evidence to prove he committed murder.  OPINION HOLDS:  While circumstantial, the evidence is sufficiently compelling to convince the jury of Thomas’s guilt.  We therefore affirm.

Case No. 18-1583:  State of Iowa v. Jeremy Lee Hill

Filed Feb 05, 2020

View Opinion No. 18-1583

            Appeal from the Iowa District Court for Warren County, Thomas P. Murphy, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J.  (12 pages)

            Jeremy Hill appeals his conviction of theft in the second degree.  Hill argues instruction sixteen was both an improper statement of the law on aiding and abetting and that it violated his constitutional rights.  Hill also argues insufficient evidence was presented to support his conviction and he received ineffective assistance of counsel.  OPINION HOLDS: Sufficient evidence was presented at trial to support Hill’s conviction of theft in the second degree.  The marshaling instruction on theft in the second degree included an explanation of specific intent, but Hill’s counsel breached his duty in failing to object to the omission of the specific-intent language from the aiding-and-abetting instruction.  However, because there is no reasonable probability a different outcome would have resulted if the instruction had been properly submitted to the jury, no prejudice has resulted, and we affirm. 

Case No. 18-1638:  State of Iowa v. Christopher Weigert

Filed Feb 05, 2020

View Opinion No. 18-1638

            Appeal from the Iowa District Court for Howard County, Richard D. Stochl, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J.  (6 pages)

            Christopher Weigert challenges the sentence imposed by the district court following his guilty plea for possession of a controlled substance with intent to deliver (methamphetamine).  Weigert maintains the court impermissibly applied a fixed sentencing policy rather than engaging in the meaningful exercise of discretion mandated by Iowa Code section 901.5 (2017).  OPINION HOLDS: Weigert has not establish the court engaged in a fixed sentencing policy.  We affirm the sentence imposed by the district court.

Case No. 18-1723:  Nicolas Cole Jacobs v. State of Iowa

Filed Feb 05, 2020

View Opinion No. 18-1723

            Appeal from the Iowa District Court for Des Moines County, Michael J. Schilling, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (3 pages)

            Nicolas Jacobs appeals the denial of his postconviction-relief application.  He contends his trial counsel was ineffective for failing to challenge Iowa Code section 232.11 (2015) as an equal protection violation.  OPINION HOLDS: We find counsel was not ineffective.  And we affirm the denial of Jacobs’s postconviction-relief application.

Case No. 18-1776:  State of Iowa v. Jacob Schmitz

Filed Feb 05, 2020

View Opinion No. 18-1776

            Appeal from the Iowa District Court for Dubuque County, Monica L. Zrinyi Wittig, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J.  (4 pages)

            Jacob Schmitz challenges the sentences imposed by the district court.  He maintains the circumstances did not warrant the consecutive terms of incarceration ordered by the court.  OPINION HOLDS: Recognizing that the court imposed a sentence within its discretion and that Schmitz has not established the court relied on an improper factor or consideration to do so, we find the district court did not abuse its discretion in sentencing Schmitz to consecutive terms of prison.  We affirm.

Case No. 18-1781:  State of Iowa v. Nicole Elizabeth Zimmerman

Filed Feb 05, 2020

View Opinion No. 18-1781

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J. (11 pages)

            Defendant appeals convictions for theft, identity theft, and forgery.  OPINION HOLDS: We reject defendant’s ineffective-assistance-of-counsel claims because a factual basis existed for the forgery conviction. We find the trial court did not abuse its discretion in sentencing the defendant to a term of incarceration. We vacate those portions of the sentencing orders pertaining to restitution and remand for a new restitution calculation.

Case No. 18-1855:  State of Iowa v. Tondalaya Bridges

Filed Feb 05, 2020

View Opinion No. 18-1855

            Appeal from the Iowa District Court for Black Hawk County, Joel A. Dalrymple, Judge.  CONVICTION AFFIRMED, SENTENCE VACATED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J. (5 pages)

            Tondalaya Bridges appeals her conviction and sentence for first-degree burglary.  OPINION HOLDS: We reject Bridges’s claim that she was so intoxicated that she could not form the specific intent to commit an assault necessary to find her guilty of first-degree burglary.  Because the verdict is not against the weight of the evidence, her trial counsel did not breach a duty to move for a new trial.  Her claim of ineffective assistance of counsel fails.  We vacate the portion of the sentencing order assessing Bridges with court costs and remand to the district court to impose restitution consistent with Bridges’s reasonable ability to pay.

Case No. 18-1886:  State of Iowa v. Charles Thomas Stoppelmoor

Filed Feb 05, 2020

View Opinion No. 18-1886

            Appeal from the Iowa District Court for Clay County, Charles K. Borth, District Associate Judge. AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J.  (6 pages)

            Charles Stoppelmoor appeals his conviction for operating while intoxicated, second offense, arguing the district court should have granted his motion to suppress based on an alleged unconstitutional seizure.  OPINION HOLDS: Based on the totality of the circumstances, the lieutenant had reasonable suspicion that Stoppelmoor was operating while intoxicated when he initiated the seizure and the district court did not err by denying the motion to suppress.

Case No. 18-2134:  State of Iowa v. Ronald Skylar Steenhoek

Filed Feb 05, 2020

View Opinion No. 18-2134

            Appeal from the Iowa District Court for Boone County, Stephen A. Owen, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (3 pages)

            Ronald Steenhoek entered a written plea of guilty to the charge of assault causing bodily injury.  Steenhoek appeals, claiming trial counsel was ineffective in failing to file a motion to dismiss the trial information because it did not give adequate notice concerning a burglary charge and in failing to take depositions.  OPINION HOLDS: Steenhoek’s first ineffective-assistance claim fails, and the record is inadequate to address the second.  We affirm.

Case No. 18-2224:  State of Iowa v. Leonard D. Boyd

Filed Feb 05, 2020

View Opinion No. 18-2224

            Appeal from the Iowa District Court for Scott County, Joel W. Barrows and Mark J. Smith, Judges.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (4 pages)

            Leonard Boyd appeals his conviction after pleading guilty to assault causing bodily injury.  OPINION HOLDS: Because the record on direct appeal is inadequate to resolve Boyd’s claim that counsel was ineffective by failing to investigate the facts and interview witnesses, we preserve it for a postconviction-relief proceeding.  But Boyd cannot show his counsel breached a duty by failing to move in arrest of judgment to challenge the voluntary nature of his plea because the court did not have to inform Boyd of a collection fee that was a collateral consequence of his plea.  Nor was the court required to conduct an in-court colloquy because Boyd’s written guilty plea to a misdemeanor waived his right to one. 

Case No. 19-0038:  In re the Marriage of Leff

Filed Feb 05, 2020

View Opinion No. 19-0038

            Appeal from the Iowa District Court for Howard County, James D. Coil, Judge.  AFFIRMED AS MODIFIED AND REMANDED.  Heard by Tabor, P.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J.  (14 pages)

            Charles Leff appeals the provisions regarding child support and tax benefits from the ruling dissolving his marriage to Carrie Leff.  He argues the trial court improperly determined his income for calculating his child support obligation and improperly allowed Carrie to claim one of the parties’ children as a dependent on her tax returns.  Carrie requests appellate attorney fees.  OPINION HOLDS: We agree with the trial court that Charles’s gross annual income for support purposes is $84,440.00, but we find his entire income is taxable.  Therefore, we remand to the district court for the purpose of calculating his child support obligation and entering a corresponding support order.  Because the child support obligation may influence the determination of how to equitably allocate the right to claim the children as dependents on the parties’ tax returns, we also remand to reconsider such allocation.  We otherwise affirm the trial court, and we deny Carrie’s request for appellate attorney fees.

Case No. 19-0057:  Brian Andreesen v. Chicago, Central & Pacific Railroad Company, d/b/a Canadian National Railway Company

Filed Feb 05, 2020

View Opinion No. 19-0057

            Appeal from the Iowa District Court for Pottawattamie County, Kathleen A. Kilnoski, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J.  (12 pages)

            Brian Andreesen appeals the district court’s denial of his motion for a new trial following a civil jury verdict in favor of the defendant, a railroad company.  He generally challenges the propriety of the instructions the district court provided to the jury concerning the statute of limitations and discovery rule.  OPINION HOLDS: We affirm the court’s use of the term “symptoms” in its jury instructions as a correct statement of the law.  We find the court’s preceding use of the term “first” to be error.  However, we find the instructional error harmless and thus affirm the denial of the motion for a new trial.

Case No. 19-0066:  State of Iowa v. Thomas Eugene Calhoun

Filed Feb 05, 2020

View Opinion No. 19-0066

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED.  Considered by Greer, P.J., Schumacher, J., and Vogel, S.J.  Opinion by Vogel, S.J. (4 pages)

            Thomas Calhoun appeals his convictions for operating while intoxicated—third offense and two counts of abandonment or neglect of a dependent person.  OPINION HOLDS: The witnesses’ testimony, as supported by the officers’ body camera footage, provides sufficient evidence to support Calhoun’s convictions.

Case No. 19-0070:  State of Iowa v. Robert Mohr

Filed Feb 05, 2020

View Opinion No. 19-0070

            Appeal from the Iowa District Court for Clinton County, Stuart P. Werling, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Tabor, J., takes no part.  Opinion by Greer, J.  (5 pages)

            Following a trial on the minutes of evidence, Robert Mohr was convicted of operating while intoxicated, first offense.  On appeal, Mohr challenges the denial of his motion to suppress, maintaining the officer who stopped his vehicle had neither reasonable suspicion nor probable cause to do so.  OPINION HOLDS: Because credible evidence supports the determination the officer witnessed Mohr drive his vehicle over the center line of the four-lane divided road, the officer had probable cause to initiate the stop.  We affirm the district court’s denial of Mohr’s motion to suppress.

Case No. 19-0082:  State of Iowa v. Lha Southideth-Whiten

Filed Feb 05, 2020

View Opinion No. 19-0082

            Appeal from the Iowa District Court for Lee (North) County, John M. Wright, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J. (14 pages)

            Lha Southideth-Whiten appeals his conviction for voluntary manslaughter, in violation of Iowa Code sections 707.4 (2016).  He contends the trial court abused its discretion in excluding expert testimony concerning his justification defense and erred in instructing the jury that a person is not justified in using reasonable force if an alternative course of action is available without noting the “home exception.”  OPINION HOLDS: Finding no abuse of the trial court’s discretion concerning the expert witness’s testimony or error in the jury instructions, we affirm.

Case No. 19-0085:  State of Iowa v. Jacob A. Boothby

Filed Feb 05, 2020

View Opinion No. 19-0085

            Appeal from the Iowa District Court for Jackson County, Nancy S. Tabor, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Tabor, J., takes no part.  Opinion by Bower, C.J. (4 pages)

            Jacob Boothby pleaded guilty to assault with intent to inflict serious injury.  On appeal, he asserts the sentencing court improperly considered his failure to sign a release of information for mental-health and substance-abuse treatment.  OPINION HOLDS: The court’s statements concerning Boothby’s refusal to sign a release of information for his mental-health and substance-abuse treatment shows the court was considering relevant information with respect to what sentence would be most appropriate.  Finding no abuse of discretion, we affirm.

Case No. 19-0086:  State of Iowa v. Felix Mejia

Filed Feb 05, 2020

View Opinion No. 19-0086

            Appeal from the Iowa District Court for Polk County, Becky Goettsch, District Associate Judge and Thomas P. Murphy, Judge.  AFFIRMED.  Considered by Bower, C.J., Doyle, J., and Vogel, S.J.  Opinion by Vogel, S.J. (3 pages)

            Felix Mejia appeals his conviction for indecent exposure, arguing his counsel was ineffective for failing to ensure his waiver of jury trial was voluntary and intelligent.  OPINION HOLDS: On the record before us, we cannot determine whether prejudice resulted from his counsel’s alleged failure to obtain a proper jury-trial waiver.  Therefore, we affirm his conviction and preserve his deficient-waiver claim for a postconviction-relief proceeding.

Case No. 19-0147:  In re the Marriage of Kohorst

Filed Feb 05, 2020

View Opinion No. 19-0147

            Appeal from the Iowa District Court for Carroll County, William C. Ostlund, Judge.  AFFIRMED AS MODIFIED.  Heard by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J.  (14 pages)

            Randy Kohorst appeals the district court’s dissolution order, arguing the court erred by (1) granting Michelle Kohorst a life estate in a lakefront property he purchased before the marriage and (2) awarding her traditional, monthly spousal support.  OPINION HOLDS: We conclude the plain language of the premarital agreement grants Michelle a life estate in the property.  We modify the district court decree to require Michelle to pay the expenses related to the property, including insurance on the property’s contents.  We also affirm the spousal support award and award Michelle appellate attorney fees. 

Case No. 19-0180:  State of Iowa v. Nicholas Wright

Filed Feb 05, 2020

View Opinion No. 19-0180

            Appeal from the Iowa District Court for Cerro Gordo County, Adam Sauer, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  (10 pages)

            Nicholas Wright appeals the denial of his motion to suppress evidence obtained from warrantless “trash rips.”  OPINION HOLDS: Because the law enforcement officer did not intrude upon a constitutionally-protected interest and Wright had no reasonable expectation of privacy in the contents of the garbage containers left out for collection, we affirm the district court’s denial of his motion to suppress. 

Case No. 19-0327:  State of Iowa v. Valentino E. Whitaker

Filed Feb 05, 2020

View Opinion No. 19-0327

            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.    

Case No. 19-0393:  State of Iowa v. Mohamed Said Diriye

Filed Feb 05, 2020

View Opinion No. 19-0393

            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.

Case No. 19-0421:  Davonus Dante Smart v. State of Iowa

Filed Feb 05, 2020

View Opinion No. 19-0421

            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.

Case No. 19-0464:  State of Iowa v. Gary Lee Manning

Filed Feb 05, 2020

View Opinion No. 19-0464

            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.

Case No. 19-0485:  In the Matter of the Estate of Michael E. O'Banion, Deceased

Filed Feb 05, 2020

View Opinion No. 19-0485

            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.

Case No. 19-0525:  John and Lauri Askew, et al. v. Trustees of Mule Slough Drainage District

Filed Feb 05, 2020

View Opinion No. 19-0525

            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.

Case No. 19-0550:  State of Iowa v. Freddie Helai

Filed Feb 05, 2020

View Opinion No. 19-0550

            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.

Case No. 19-0658:  In the Interest of D.C., Minor Child

Filed Feb 05, 2020

View Opinion No. 19-0658

            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.

Case No. 19-0667:  129 State, L.L.C., and Patricia J. Brown, as Trustee under the Revocable Living Trust Agreement of Patricia J. Brown v. Howard 209, L.C.

Filed Feb 05, 2020

View Opinion No. 19-0667

            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. 

Case No. 19-0705:  In re the Marriage of Brown

Filed Feb 05, 2020

View Opinion No. 19-0705

            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.

Case No. 19-0750:  State of Iowa v. Matthew Joseph Poock

Filed Feb 05, 2020

View Opinion No. 19-0750

            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. 

Case No. 19-0907:  State of Iowa v. Gerardo Antonio Andrade Zepeda

Filed Feb 05, 2020

View Opinion No. 19-0907

            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.

Case No. 19-1515:  In the Interest of X.W., Minor Child

Filed Feb 05, 2020

View Opinion No. 19-1515

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (12 pages)

            Parents appeal the termination of their parental rights.  OPINION HOLDS: Termination was warranted with respect to the father under Iowa Code section 232.116(1)(h) (2019) and with respect to the mother under section 232.116(1)(g).  We find termination to be in the child’s best interests and refrain from applying a permissive factor as set forth in Iowa Code section 232.116(3).

Case No. 19-1567:  In the Interest of K.K.-C., Minor Child

Filed Feb 05, 2020

View Opinion No. 19-1567

            Appeal from the Iowa District Court for Scott County, Korie Shippee, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Mullins, J.  (12 pages)

            A mother and father separately appeal the terminations of their parental rights to their child.  The mother argues termination is not in the child’s best interests.  The father challenges the statutory grounds for termination of parental rights and argues a number of the juvenile court’s findings are in error.  OPINION HOLDS: Because the mother has yet to comply with the requirement to secure appropriate housing, the child’s emotional upheaval related to interactions with the mother, and the child’s consistent express preference for adoption, we affirm termination of the mother’s parental rights.  Although the father has obtained and maintained employment and housing, circumstances exist that prevent reunification with the child.  Furthermore, because of the father’s inexperience in parenting, the need for consistent intervention regarding appropriate conversation topics and physical interactions, and the child’s express preference for adoption we affirm termination of the father’s parental rights.

Case No. 19-1658:  In the Interest of C.W., Minor Child

Filed Feb 05, 2020

View Opinion No. 19-1658

            Appeal from the Iowa District Court for Harrison County, Jennifer A. Benson, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J.  (13 pages)

            A father appeals the termination of his parental rights to his minor child, born in February 2018.  He argues: (1) the juvenile court abused its discretion and violated his due process rights in denying his motions to continue the termination hearing, (2) the court erred in denying his motion for records, (3) the court erred in taking judicial notice of a prior child-welfare case as well as two criminal cases, (4) the State provided insufficient evidence to support termination, (5) termination is not in the child’s best interests because he loves the child “and there is a closeness there,” and (6) the Iowa Department of Human Services failed to make reasonable efforts at reunification.  OPINION HOLDS: We affirm the termination of the father’s parental rights.

Case No. 19-1668:  In the Interest of A.F. and A.D., Minor Children

Filed Feb 05, 2020

View Opinion No. 19-1668

            Appeal from the Iowa District Court for Iowa County, Jason A. Burns, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by May, J.  (6 pages)

            A mother appeals the juvenile court’s termination of her parental rights.  OPINION HOLDS: We conclude termination is appropriate under Iowa law and consistent with the children’s best interests.

Case No. 19-1803:  In the Interest of J.S., Minor Child

Filed Feb 05, 2020

View Opinion No. 19-1803

            Appeal from the Iowa District Court for Wapello County, William Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Bower, C.J., Greer, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (7 pages)

            A mother appeals the juvenile court decision terminating her parental rights.  OPINION HOLDS:  We conclude the mother has failed to show the State did not make reasonable efforts to reunite her with the child, we agree with the court’s decision to deny the mother’s request for additional time, and we find the provisions in Iowa Code section 232.116(3) (2019) should not be applied to prevent termination of the mother’s parental rights.  We affirm the decision of the juvenile court.

Case No. 19-1861:  In the Interest of C.N. and A.N., Minor Children

Filed Feb 05, 2020

View Opinion No. 19-1861

            Appeal from the Iowa District Court for Calhoun County, Joseph McCarville, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (8 pages)

            A mother appeals the termination of her parental rights to two of her children.  OPINION HOLDS: A statutory ground authorizing termination is satisfied.  Termination is in the children’s best interests.  We decline to apply any of the permissive exceptions to termination found in Iowa Code section 232.116(3) (2019).  The juvenile court correctly denied the mother’s request for additional time to work toward reunification and establishment of a guardianship.

Case No. 19-1884:  In the Interest of M.B. and R.B., Minor Children

Filed Feb 05, 2020

View Opinion No. 19-1884

            Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Ahlers, J.  (13 pages)

            A father appeals the termination of his parental rights to his two children.  OPINION HOLDS: We find the State proved the statutory grounds for terminating the father’s parental rights to both children, termination is in the children’s best interest, and consideration of the father’s refusal to participate in drug testing does not violate the constitutional prohibition on unreasonable search and seizure.  Therefore, we affirm the termination of the father’s parental rights to both children.

Case No. 19-1892:  In the Interest of J.G., Minor Child

Filed Feb 05, 2020

View Opinion No. 19-1892

            Appeal from the Iowa District Court for Polk County, Monty Franklin, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            A father appeals the juvenile court order terminating his parental rights to his child, contending termination of his parental rights is not in the child’s best interest and the department failed to make reasonable efforts to reunify him with the child.  OPINION HOLDS: We affirm the termination of the father’s parental rights to his child.

Case No. 19-1896:  In the Interest of J.S., Minor Child

Filed Feb 05, 2020

View Opinion No. 19-1896

            Appeal from the Iowa District Court for Webster County, Joseph McCarville, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (5 pages)

            A mother appeals the termination of her parental rights to her child.  OPINION HOLDS: Clear and convincing evidence shows the child could not be returned to the mother’s care at the time of the termination hearing, and termination is in the child’s best interests.  Because no credible evidence suggests the need for removal of the child will no longer exist at the end of an additional six-month period, the record does not support continuing the child’s placement.

Case No. 19-1912:  In the Interest of M.D., Minor Child

Filed Feb 05, 2020

View Opinion No. 19-1912

            Appeal from the Iowa District Court for Polk County, Lynn Poschner, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Doyle, J., and Potterfield, S.J.  Opinion by Potterfield, S.J.  (5 pages)

            The father appeals the termination of his parental rights to M.D., born in June 2018.  The father challenges the statutory grounds for termination and maintains the court should have applied a permissive factor to save the parent-child relationship, as M.D. remains in the custody of her mother.  OPINION HOLDS: We affirm the termination of the father’s parental rights.

Case No. 19-2068:  In the Interest of N.P., Minor Child

Filed Feb 05, 2020

View Opinion No. 19-2068

            Appeal from the Iowa District Court for Clinton County, Mark Fowler, Judge. AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  (5 pages)

            A mother appeals the termination of her parental rights.  She does not contest that grounds for termination exist.  However, she asserts termination is not in the child’s best interests.  OPINION HOLDS:  We agree with the juvenile court that termination and adoption will best provide N.P. with stability and permanency, and we therefore affirm.

Case No. 17-1718:  State of Iowa v. Randall Brocksieck

Filed Jan 23, 2020

View Opinion No. 17-1718

            Appeal from the Iowa District Court for Scott County, Mark J. Smith, Judge.  AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., Greer, J., and Potterfield, S.J.  Opinion by Greer, J. (9 pages)

           

            Randall Brocksieck appeals the sentence and restitution order imposed following his guilty plea.  Brocksieck raises three claims on appeal: (1) the presentence investigation report improperly included a sentencing recommendation; (2) the district court erred by considering improper factors when imposing the five-year sentence; (3) and the court erred by ordering Brocksieck to pay court-appointed trial and appellate attorney fees.  OPINION HOLDS: The sentencing recommendation in the PSI did not constitute a procedural defect; the district court did not consider any improper factors; and there is not yet a final restitution order regarding attorney fees.  We affirm Brocksieck’s sentence but vacate the portion of the sentencing order referencing attorney fees and remand for entry of a final restitution order.

Case No. 18-1273:  In the Matter of the Guardianship and Conservatorship of Diane Florene Norelius

Filed Jan 23, 2020

View Opinion No. 18-1273

            Appeal from the Iowa District Court for Crawford County, Julie A. Schumacher, Judge.  AFFIRMED.  Considered by Bower, C.J., and Tabor and Mullins, JJ.  Schumacher, J., takes no part.  Opinion by Mullins, J.  (9 pages)

            Appellants Juliann Nelson and Kristine Norelius appeal the district court ruling on their petition to establish an involuntary guardianship and conservatorship over their mother, Diane Norelius.  They argue the court abused its discretion in (1) declining to appoint them as sole non-resident co-guardians of Diane or to name them as non-resident co-guardians along with Juliann’s daughter as resident co-guardian and instead appointing one of Diane’s friends; (2) its selection of one of the two co-conservators; (3) declining to reopen the record to allow the presentation of evidence that said co-conservator would be unsuitable; (4) giving too much weight to Diane’s preference to name the co-conservator; (5) sealing its final order of appointment; and (6) granting Diane’s attorney’s request for attorney fees and only partially granting the appellants’ attorney’s request for fees.  The appellants request an award of attorney fees.  OPINION HOLDS: We affirm the district court’s appointment of the guardian and assessment of attorney fees.  We determine all of the co-conservator-related issues and the court’s sealing of its final order of appointment to be moot.  We deny the appellants’ request for appellate attorney fees.  We do not consider any arguments raised by the appellants for the first time in their reply brief.  Costs on appeal are assessed against the appellants. 

Case No. 18-1342:  State of Iowa v. Wesley Vincent Swanson

Filed Jan 23, 2020

View Opinion No. 18-1342

            Appeal from the Iowa District Court for Dickinson County, Nancy L. Whittenburg, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J. (11 pages)

            Wesley Swanson appeals his convictions of third-degree burglary and second-degree theft, following a jury trial.  OPINION HOLDS: Upon our de novo review of the record, we agree with the district court’s ruling overruling Swanson’s motion to evaluate and determine Swanson’s competency to stand trial, and we find Swanson failed to establish his trial counsel was ineffective.  We also conclude substantial evidence supports Swanson’s challenged convictions and the district court did not abuse its discretion in denying Swanson’s motion for a new trial.  So we affirm Swanson’s challenged convictions in all respects.

Case No. 18-1373:  State of Iowa v. Traci Jones Barker

Filed Jan 23, 2020

View Opinion No. 18-1373

            Appeal from the Iowa District Court for Louisa County, Wyatt Peterson, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Tabor, P.J., Greer, J., and Potterfield, S.J.  Opinion by Greer, J. (8 pages)

            Traci Barker appeals the sentence and restitution order entered after her guilty plea to one count of theft in the second degree.  Barker raises three claims on appeal: (1) the presentence investigation report improperly included a sentencing recommendation; (2) the district court erred by considering improper factors when imposing the sentence; (3) and the court erred by ordering Barker to pay restitution for her court-appointed attorney, court costs, and jail fees without considering her reasonable ability to pay.  OPINION HOLDS: We reverse the restitution portion of the sentencing order but otherwise affirm Barker’s sentence.  We remand for entry of a final restitution order considering her reasonable ability to pay court costs and jail fees.

Case No. 18-1466:  Charles Dean White v. State of Iowa

Filed Jan 23, 2020

View Opinion No. 18-1466

            Appeal from the Iowa District Court for Page County, Susan Christensen, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Carr, S.J.  Opinion by Carr, S.J.  (6 pages)

            Charles White appeals the denial of his application for postconviction relief.  OPINION HOLDS: I. White’s trial counsel made a reasonable tactical decision by refraining from impeaching the complaining witness directly with her deposition.  Because White has failed to show counsel performed below the standard of a competent practitioner, we affirm the denial of PCR on this ground.  II. White failed to preserve error on his claim the postconviction court erred by limiting the scope of the proceedings to the claim of ineffective assistance related to witness impeachment.  And the record is inadequate to address White’s claim that his postconviction counsel was ineffective by only litigating that claim.

Case No. 18-1585:  In re the Marriage of Van Fleet

Filed Jan 23, 2020

View Opinion No. 18-1585

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED.  Considered by Bower, C.J., Doyle, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (6 pages)

            Andrew Van Fleet appeals from an order modifying the physical care provisions of the decree dissolving his marriage to Brenda Van Fleet.  OPINION HOLDS: Upon our de novo review, we agree modification is appropriate under the facts of this case and we affirm.

Case No. 18-1893:  State of Iowa v. David Lee Hering

Filed Jan 23, 2020

View Opinion No. 18-1893

            Appeal from the Iowa District Court for Muscatine County, Mark D. Cleve, Judge.  AFFIRMED AND REMANDED.  Considered by Viatheswaran, P.J., Mullins, J., and Potterfield, S.J.  Opinion by Mullins, J.  (8 pages)

            David Hering appeals a district court order determining the amount of restitution for court costs.  He argues the State’s claim for restitution is untimely, the court erred in its determination of the amount of restitution owed, his restitution obligation is satisfied in full because no supplemental order of restitution was ever entered, the procedures used by the State to withhold money from his prison account violated due process for lack of notice, and the State was required to collect restitution from his involuntary conservatorship.  OPINION HOLDS: We affirm the district court’s determination of the amount owed by Hering, its return of funds flowing from unsecured loans, and its refusal to order a return of the funds flowing from prison wages.  We remand the matter to the district court for completion of the remaining restitution procedures, determination of Hering’s reasonable ability to pay, and entry of a final restitution order. 

Case No. 18-1909:  In the Interest of J.H., Minor Child

Filed Jan 23, 2020

View Opinion No. 18-1909

            Appeal from the Iowa District Court for Pottawattamie County, Craig M. Dreismeier, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.  Opinion by Vaitheswaran, P.J.  (9 pages)

            J.H. appeals a juvenile court order requiring him to register as a sex offender, contending (A) the juvenile court lacked jurisdiction to require sex offender registration after he turned eighteen and (B) the colloquy preceding the consent decree was insufficient to support a requirement for him to register as a sex offender.  OPINION HOLDS: We affirm the juvenile court order requiring J.H. to register as a sex offender.

Case No. 18-1933:  S.M. Hentges & Sons Inc. v. City of Iowa City

Filed Jan 23, 2020

View Opinion No. 18-1933

            Appeal from the Iowa District Court for Johnson County, Kevin McKeever, Judge.  AFFIRMED AND REMANDED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (9 pages)

            This appeal stems from a breach-of-contract dispute between subcontractor S.M. Hentges & Sons Inc. and general contractor Joseph J. Henderson & Sons Inc.  Hentges sued Henderson seeking about $500,000 for its excavation work on a public improvement project.  Henderson counterclaimed, alleging Hentges failed to perform its work properly or timely.  The jury ruled in favor of Henderson.  Hentges now appeals the district court’s post-verdict determination that it owes costs and attorney fees to Henderson.  OPINION HOLDS: Because the district court properly determined Henderson was the prevailing party, we affirm its rulings.  We remand for the district court to fix a reasonable amount of appellate attorney fees. 

Case No. 18-1946:  State of Iowa v. Erwin King

Filed Jan 23, 2020

View Opinion No. 18-1946

            Appeal from the Iowa District Court for Scott County, Stuart P. Werling, Judge.  REVERSED AND REMANDED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (4 pages)

            Erwin King appeals from his conviction for second-degree theft.  OPINION HOLDS: The district court properly denied King’s motion for acquittal.  But the record does not establish King’s waiver of counsel was voluntary, knowing, and intelligent.  So we reverse and remand for new trial.

Case No. 18-1956:  State of Iowa v. Darieo Equanne Tillman

Filed Jan 23, 2020

View Opinion No. 18-1956

            Appeal from the Iowa District Court for Black Hawk County, George L. Stigler and Joel A. Dalrymple, Judges.  CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J. (10 pages)

            Darieo Tillman appeals his conviction for possession of marijuana with intent to deliver.  OPINION HOLDS: We affirm the district court’s decision finding the officer’s actions after stopping the pickup in which Tillman was a passenger were objectively reasonable and denying the motion to suppress.  We determine Tillman’s claim of ineffective assistance of counsel should be preserved for possible postconviction proceedings. We vacate the restitution portion of the sentencing order and remand the case to the district court.

Case No. 18-1973:  Luis Ramon Ayabarreno v. State of Iowa

Filed Jan 23, 2020

View Opinion No. 18-1973

            Appeal from the Iowa District Court for Hancock County, Gregg R. Rosenbladt, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., May, J., and Blane, S.J.  Opinion by Blane, S.J.  (11 pages)

            A PCR applicant appeals the denial of his application, contending his criminal trial counsel was ineffective in failing to object to jury instructions regarding the dangerous weapon definition and aiding and abetting.  OPINION HOLDS: The applicant’s criminal trial counsel was not ineffective in not objecting to the dangerous weapon instruction, which was a correct statement of the law, and applicant failed to prove prejudice in failing to object to the aiding and abetting instruction.

Case No. 18-1984:  State of Iowa v. Mawea Rial Koat

Filed Jan 23, 2020

View Opinion No. 18-1984

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Doyle, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (5 pages)

            Mawea Koat appeals following the denial of his motion for a new trial, contending the district court abused its discretion in denying his motion for a new trial because the jury verdict was contrary to the weight of the evidence and the court applied an incorrect standard in ruling on his motion.  OPINION HOLDS: We affirm the district court’s denial of Koat’s motion for new trial.

Case No. 18-2052:  State of Iowa v. Donald L. Smith, Jr.

Filed Jan 23, 2020

View Opinion No. 18-2052

            Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (11 pages)

            A defendant appeals from convictions for drug possession and failure to possess a tax stamp.  OPINION HOLDS: The evidence is sufficient to support the convictions, and the verdicts are not contrary to the evidence.  The prosecutor’s comment during closing arguments did not constitute misconduct nor was it prejudicial, and we find the complaint against it unpreserved.  The claims raised by Smith’s supplemental pro se brief are unpreserved. 

Case No. 18-2063:  State of Iowa v. Tyree Jermaine Millsap

Filed Jan 23, 2020

View Opinion No. 18-2063

            Appeal from the Iowa District Court for Madison County, Thomas P. Murphy and Martha L. Mertz, Judges.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Ahlers, J. (4 pages)

            Tyree Millsap appeals the sentence imposed following his conviction and sentence for two counts of child endangerment resulting in bodily injury.  OPINION HOLDS: The district court did not abuse its discretion.  We affirm.

Case No. 18-2079:  State of Iowa v. Jeffrey Ray Nagel

Filed Jan 23, 2020

View Opinion No. 18-2079

            Appeal from the Iowa District Court for Polk County, Heather L. Lauber, Judge.  SENTENCE VACATED IN PART AND REMANDED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Vaitheswaran, P.J.  (2 pages)

            Jeffrey Nagel appeals his sentence following his guilty plea to assault with intent to commit sexual abuse, contending the district court “did not evaluate [his] reasonable ability to pay” victim restitution and court costs before ordering restitution for those items.  OPINION HOLDS: We vacate the order of disposition and remand for further proceedings.  

Case No. 18-2171:  State of Iowa v. Joseph Jackson Howard

Filed Jan 23, 2020

View Opinion No. 18-2171

            Appeal from the Iowa District Court for Warren County, Mark F. Schlenker, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., May, J., and Scott, S.J.  Opinion by Scott, S.J.  (8 pages)

            Joseph Howard appeals his conviction of possession of a controlled substance.  He challenges the district court’s denial of his motion to suppress evidence obtained as a result of a traffic stop, arguing the traffic stop lacked probable cause and was therefore unconstitutional.  OPINION HOLDS: We agree with the district court that law enforcement had probable cause to believe the headlamp on the vehicle Howard was driving was inadequate under Iowa law.  At the very least, reasonable suspicion justified the stop.  We affirm the denial of Howard’s motion to suppress and his ensuing conviction.

Case No. 19-0030:  In re the Marriage of Pleggenkuhle

Filed Jan 23, 2020

View Opinion No. 19-0030

            Appeal from the Iowa District Court for Fayette County, Bradley J. Harris, Judge.  AFFIRMED AND REMANDED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (8 pages)

            Jesse Pleggenkuhle appeals the decree dissolving his twenty-two-year marriage to Kimberly.  In the decree, the district court found two $50,000 payments from Jesse’s family were gifts to both him and Kimberly for building and refinancing their marital home.  Jesse contends those gifts were not divisible as marital property because his parents gave them to him alone, intending to keep the farm in the family.  He also contends the award of spousal support is inequitable.  OPINION HOLDS:  Because the district court correctly concluded the gift was to the couple, not Jesse alone, and the support award is equitable, we affirm on both grounds.  Kimberly asks for appellate attorney fees; we remand for the district court to determine a reasonable award.

Case No. 19-0080:  Forex Israel, VP Ltd. v. Cedar Rapids Bank and Trust Company

Filed Jan 23, 2020

View Opinion No. 19-0080

            Appeal from the Iowa District Court for Linn County, Mitchell E. Turner, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (10 pages)

            The plaintiff appeals from the ruling granting the defendant’s motion for summary judgment, challenging the district court’s decisions to deny in part the plaintiff’s motion for a continuance and to deny plaintiff’s request to amend its petition a third time.  OPINION HOLDS: We affirm the district court’s decisions denying the motion to continue and the motion to amend the petition.

Case No. 19-0093:  Fahrney v. City of Des Moines

Filed Jan 23, 2020

View Opinion No. 19-0093

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  REVERSED AND REMANDED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (9 pages)

            The Animal Rescue League (ARL) appeals the district court’s denial of its motion for sanctions against plaintiff Bela Animal Legal Defense and Rescue (Bela) and plaintiff’s counsel.  The ARL argues the district court abused its discretion by declining to impose sanctions based on their perceived futility in deterring unprofessional conduct on this record.  OPINION HOLDS: Because Iowa Rule of Civil Procedure 1.413(1) commands courts to impose sanctions when they find violations of the rule on frivolous filings, we reverse and remand for further proceedings. 

Case No. 19-0169:  Leslie Ann Harrod v. Advance Services, Inc. and Ace American Insurance Company

Filed Jan 23, 2020

View Opinion No. 19-0169

            Appeal from the Iowa District Court for Buena Vista County, Carl J. Petersen, Judge.  AFFIRMED.  Considered by Tabor, P.J., Greer, J., and Potterfield, S.J.  Opinion by Potterfield, S.J.  (10 pages)

            Leslie Harrod appeals the district court order affirming the final decision of the Iowa Workers’ Compensation Commission in regard to her claim against her employer Advance Services, Inc. and its insurer Ace American Insurance Company.  Harrod argues (1) the reviewing deputy’s decision to reduce the initial deputy commissioner’s forty percent industrial disability to twenty-five percent industrial disability was not supported by substantial evidence; (2) the reviewing deputy’s reversal of the deputy’s grant of alternative medical care was not supported by substantial evidence; and (3) the reviewing deputy erroneously reversed the deputy’s award of penalty benefits.  OPINION HOLDS: Substantial evidence supported the reviewing deputy’s determination that Harrod suffered a twenty-five percent industrial disability from her injury.  Harrod did not meet her burden to show she was entitled to alternative medical care or that appellees unreasonably delayed making payments to her. 

Case No. 19-0210:  In the Matter of the Guardianship and Conservatorship of Diane Florene Norelius

Filed Jan 23, 2020

View Opinion No. 18-1273

            Appeal from the Iowa District Court for Crawford County, James S. Heckerman, Judge.  AFFIRMED.  Considered by Bower, C.J., and Tabor and Mullins, JJ.  Schumacher, J., takes no part.  Opinion by Mullins, J.  (5 pages)

            Appellants Juliann Nelson and Kristine Norelius appeal the district court ruling awarding attorney fees to an intervenor in an involuntary guardianship and conservatorship proceeding, arguing the court abused its discretion in awarding fees.  OPINION HOLDS: We affirm the district court.  We decline to award appellate attorney fees to the appellants.  We award fees to the intervenor in the amount of $3500.00, payable by appellants.  Costs on appeal are assessed to appellants. 

Case No. 19-0290:  State of Iowa v. Justin Lee Erdman

Filed Jan 23, 2020

View Opinion No. 19-0290

            Appeal from the Iowa District Court for Polk County, Gregory D. Brandt, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Mullins, J.  (7 pages)

            Justin Erdman appeals the denial of his motion to suppress following his criminal convictions.  He challenges the constitutionality of a search of his vehicle following a traffic stop.  OPINION HOLDS: Upon our de novo review, we conclude the search was supported by exigent circumstances coupled with probable cause and was therefore reasonable, which is all that is constitutionally required.  As such, we affirm the denial of Erdman’s motion to suppress and his convictions.

Case No. 19-0509:  Tena R. Schantz v. Wild Rose Emmetsburg, LLC, Wild Rose Entertainment, LLC, and Wild Rose Entertainment LLLP

Filed Jan 23, 2020

View Opinion No. 19-0509

            Appeal from the Iowa District Court for Palo Alto County, David A. Lester, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J.  (10 pages)

            Tena Schantz appeals the district court’s grant of a directed verdict, ending her slip-and-fall case.  OPINION HOLDS: We conclude the district court properly granted a directed verdict for Wild Rose on all of Schantz’s claims of negligence except for her claim of negligence based on failing to clean and maintain the bathtub/shower.  We remand for further proceedings on that claim.

Case No. 19-0576:  Joseph Lewis v. Windsor Windows & Doors and Twin City Fire Insurance Company

Filed Jan 23, 2020

View Opinion No. 19-0576

            Appeal from the Iowa District Court for Polk County, Celene Gogerty, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.  Opinion by Vaitheswaran, P.J.  (5 pages)

            Joseph Lewis appeals the district court’s ruling on judicial review affirming the decision of the workers’ compensation commissioner, contending the commissioner’s fact findings are not supported by substantial evidence.  OPINION HOLDS: The record as a whole contained substantial evidence to support the commissioner’s fact findings and determination that the injury did not arise out of and in the course of Lewis’ employment.  Accordingly, we affirm.

Case No. 19-0611:  State of Iowa v. James Allen Wehr

Filed Jan 23, 2020

View Opinion No. 19-0611

            Appeal from the Iowa District Court for Calhoun County, Adria Kester, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J.  (5 pages)

            James Wehr appeals his conviction of driving while barred as a habitual offender.  He challenges the sufficiency of the evidence supporting the guilty verdict.  He also seems to argue his conviction is invalid because his initial barment was rendered improper.  He finally argues counsel rendered ineffective assistance in various respects.  OPINION HOLDS: We affirm Wehr’s conviction but preserve his claim counsel was ineffective in failing to file a motion in arrest of judgment for postconviction relief.

Case No. 19-0768:  In re the Marriage of Luethje

Filed Jan 23, 2020

View Opinion No. 19-0768

            Appeal from the Iowa District Court for Warren County, Paul R. Huscher, Judge.  AFFIRMED AS MODIFIED AND REMANDED WITH INSTRUCTIONS.  Considered by May, P.J., Greer, J., and Potterfield, S.J.  Opinion by Greer, J.  (11 pages)

            A mother appeals the district court’s custody ruling in a dissolution action arguing shared physical care was not in the children’s best interests.  OPINION HOLDS: After considering the best-interests framework and the facts of this case, we conclude shared physical care is not in the children’s best interests.  We remand for the entry of an order granting the mother physical care, granting the father liberal visitation, and recalculating the child support obligation.  We decline to award appellate attorney fees to either party.

Case No. 19-0926:  In the Matter of the Guardianship and Conservatorship of Diane Florence Norelius

Filed Jan 23, 2020

View Opinion No. 19-0926

            Appeal from the Iowa District Court for Crawford County, James S. Heckerman, Judge.  REVERSED AND REMANDED.  Considered by Bower, C.J., and Tabor and Mullins, JJ.  Schumacher, J., takes no part.  Opinion by Mullins, J.  (5 pages)

            Appellants Juliann Nelson and Kristine Norelius appeal the denial of their application for declaratory relief on jurisdictional grounds.  OPINION HOLDS: We reverse the denial of the application for declaratory relief and remand the matter to the district court for a hearing on the application.  We deny the appellants’ request for appellate attorney fees.  Cost on appeal shall be equally assessed between the appellants and the conservatorship. 

Case No. 19-1096:  Robert Edward Meller v. Meranda R. Hendrickson

Filed Jan 23, 2020

View Opinion No. 19-1096

            Appeal from the Iowa District Court for Story County, Angela L. Doyle, Judge.  REVERSED AND REMANDED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J.  (11 pages)

                Robert (“Bobby”) Meller appeals the district court custody order granting Meranda Hendrickson physical care of their minor child.  OPINION HOLDS: We agree with the district court that the case presents “a close question,” but we conclude the factors weigh in favor of Bobby having physical care. 

Case No. 19-1530:  In the Interest of L.C. and L.C., Minor Children

Filed Jan 23, 2020

View Opinion No. 19-1530

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED.  Considered by Greer, P.J., Schumacher, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (7 pages)

            A father appeals the termination of his parental rights to two of his children.  He challenges the sufficiency of the evidence supporting the statutory grounds for termination, contends termination is not in the children’s best interests, and claims the juvenile court was “unable to render a fair judgment due to the court’s bias and prejudice.”  OPINION HOLDS: We affirm the decision of the juvenile court to terminate the father’s parental rights.  

Case No. 19-1550:  In the Interest of M.S., Minor Child

Filed Jan 23, 2020

View Opinion No. 19-1550

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge. AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            A mother appeals the termination of her parental rights to a child, contending (1) the record lacks clear and convincing evidence to support the grounds for termination cited by the district court and (2) the department of human services failed to make reasonable efforts toward reunification. OPINION HOLDS: Because clear and convincing evidence supports the district court’s determination and the department satisfied its reasonable efforts mandate, we affirm.

Case No. 19-1552:  In the Interest of I.J., L.J., Z.M., and T.M., Minor Children

Filed Jan 23, 2020

View Opinion No. 19-1552

            Appeal from the Iowa District Court for Polk County, Kimberly Ayotte, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (7 pages)

            Monique, mother of four children, I.J., L.J., Z.M., and T.M. and Antawun, father of I.J. and L.J., challenge the juvenile court’s termination of their parental rights under Iowa Code § 231.116(1) (2019) and claim that the district court should have preserved the parent-child relationships because of their strong bonds with the children.  OPINION HOLDS: Because neither parent contests termination under Iowa Code § 231.116(1)(f), we need not discuss this step.  Also, the record does not support both parents’ claims that their relationships were so close that termination would bring harm to the children.  In addition, because the record shows I.J. and L.J felt secure with their foster parents and that Monique’s inconsistency in visits had negative impacts on Z.M. and T.M, Section 232.116(3)(c) did not compel a different outcome. Finally, because Monique has had more than a year to address her substance-abuse disorder, it is unlikely that Monique could provide a stable home for these children at the end of a six-month extension.  We affirm on both appeals. 

Case No. 19-1579:  In the Interest of D.P., N.P., and T.C., Minor Children

Filed Jan 23, 2020

View Opinion No. 19-1579

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (10 pages)

            A mother and father appeal the termination of their parental rights.  OPINION HOLDS: Termination of the mother’s rights is warranted under paragraphs (f) and (h) of Iowa Code section 232.116(1) (2019).  Termination of the father’s rights is warranted under paragraph (h).  We further find termination to be in the children’s best interests and find it inappropriate to preclude termination under the permissive standards in Iowa Code section 232.116(3).

Case No. 19-1657:  In the Interest of C.M., A.R., and A.A., Minor Children

Filed Jan 23, 2020

View Opinion No. 19-1657

            Appeal from the Iowa District Court for Woodbury County, Mark C. Cord III, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (9 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: We find the grounds for termination have been established by clear and convincing evidence, an extension is not warranted, and the State has provided reasonable efforts at reunification.  We affirm.

Case No. 19-1696:  In the Interest of B.H., Minor Child

Filed Jan 23, 2020

View Opinion No. 19-1696

            Appeal from the Iowa District Court for Woodbury County, Stephanie Forker Parry, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (6 pages)

            A mother appeals the juvenile court’s termination of her parental rights.  OPINION HOLDS: We find termination is appropriate under Iowa law and consistent with the child’s best interest.

Case No. 19-1802:  In the Interest of O.W., Minor Child

Filed Jan 23, 2020

View Opinion No. 19-1802

            Appeal from the Iowa District Court for Marion County, Steven Guiter, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J.  (7 pages)

            The mother appeals the termination of her parental rights to her child, O.W., born in 2018.  The mother maintains the statutory grounds for termination have not been met, termination is not in O.W.’s best interests, the court should have applied a permissive factor to save the parent-child relationship, and a six-month extension to work toward reunification is warranted.  OPINION HOLDS: We affirm the termination of the mother’s parental rights. 

Case No. 19-1828:  In the Interest of K.F., Minor Child

Filed Jan 23, 2020

View Opinion No. 19-1828

            Appeal from the Iowa District Court for Warren County, Brendan Greiner, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (6 pages)

            A father appeals the juvenile court’s termination of his parental rights.  OPINION HOLDS: We conclude termination is appropriate under Iowa law and consistent with the child’s best interest.

Case No. 19-1843:  In the Interest of L.H., S.H., and A.H., Minor Children

Filed Jan 23, 2020

View Opinion No. 19-1843

            Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (4 pages)

            A mother appeals the termination of her parental rights, challenging the sufficiency of the evidence supporting the statutory ground for termination and contending termination is not in the children’s best interests.  OPINION HOLDS: We affirm termination of the mother’s parental rights.

Case No. 19-1913:  In the Interest of A.P., Minor Child

Filed Jan 23, 2020

View Opinion No. 19-1913

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

            A father appeals the termination of his parental rights to one child under Iowa Code section 232.116(1), paragraphs (e) and (h) (2019).  He argues the court should have given him more time to work toward reunification.  OPINION HOLDS: Because the father was incarcerated and had no clear idea when he would be released, he cannot begin caring for the child at the present and the record offers no assurance he would be able to in a reasonable amount of time.  Termination serves the child’s best interests.  We affirm. 

Case No. 17-1904:  Demarrio Deshon Wright v. State of Iowa

Filed Jan 09, 2020

View Opinion No. 17-1904

            Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (9 pages)

            DeMarrio Wright appeals following the denial of his application for postconviction relief, claiming prosecutorial misconduct and ineffective assistance of counsel.  OPINION HOLDS: Because Wright has failed to prove counsel was ineffective, we affirm.

Case No. 18-0376:  State of Iowa v. Frankie Ray O'Connor

Filed Jan 09, 2020

View Opinion No. 18-0376

            Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.  AFFIRMED.  Considered by Tabor, P.J., Greer, J., and Potterfield, S.J.  Opinion by Potterfield, S.J. (8 pages)

            Frankie O’Connor appeals his sentence following his guilty plea to one count of possession of more than five grams of methamphetamine with intent to deliver in violation of Iowa Code section 121.401(1)(b)(7) (2016).  On appeal, O’Connor argues the district court improperly considered risk assessment scores in the presentence investigation report because the scores not “validated” under Iowa Code Section 901.11(1) and reliance on unvalidated scores violated O’Connor’s rights under the Due Process Clauses of the Fifth and Fourteenth Amendment to the United States Constitution and article I, section 9 of the Iowa Constitution.  He also argues his trial counsel was ineffective insofar as they failed to raise those challenges at trial, and that the district court erred by requiring him to pay the court costs associated with the counts dismissed by the State.  Finally, he filed a pro se brief which requests we reduce his mandatory minimum sentence.  OPINION HOLDS: O’Connor’s due process and ineffective assistance of counsel claims are not preserved for our review; he may bring those claims in an application for postconviction relief proceedings if he so desires.  The district court did not err by assessing court fees against him.  We cannot grant his requested sentence reduction. 

Case No. 18-0396:  State of Iowa v. Shane Allen Cheely

Filed Jan 09, 2020

View Opinion No. 18-0396

            Appeal from the Iowa District Court for Des Moines County, Mary Ann Brown and Mark Kruse, Judges.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (3 pages)

            Shane Cheely appeals his guilty plea to possession of marijuana as a habitual offender.  He claims his plea was not voluntarily and intelligently entered.  OPINION HOLDS: We find Cheely failed to preserve error.  So we affirm.

Case No. 18-0707:  State of Iowa v. Dylan Daniel Millard

Filed Jan 09, 2020

View Opinion No. 18-0707

            Appeal from the Iowa District Court for Polk County, Carol S. Egly, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (3 pages)

            Dylan Millard appeals following guilty pleas to harassment in the first degree, harassment in the second degree, and assault causing bodily injury or mental illness.  OPINION HOLDS: We affirm.

Case No. 18-0709:  Adam John Pitman v. State of Iowa

Filed Jan 09, 2020

View Opinion No. 18-0709

            Appeal from the Iowa District Court for Lee (South) County, Mary Ann Brown, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Doyle, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (7 pages)

            Adam Pitman appeals the district court decision denying his request for postconviction relief from his conviction of first-degree murder.  Pitman claims he received ineffective assistance because defense counsel did not present a defense of diminished responsibility.  OPINION HOLDS:  Defense counsel considered the defense and rejected it due to a lack of expert witness support.  We conclude Pitman has failed to show he received ineffective assistance of counsel.  We affirm the district court’s decision denying his request for postconviction relief.

Case No. 18-0721:  State of Iowa v. Dion Jeremiah Banks

Filed Jan 09, 2020

View Opinion No. 18-0721

            Appeal from the Iowa District Court for Scott County, Patrick A. McElyea and Mark J. Smith, Judges.  CONVICTIONS AFFIRMED, SENTENCES VACATED IN PART, AND REMANDED.  Considered by Tabor, P.J., Greer, J., and Potterfield, S.J.  Opinion by Potterfield, S.J.. (14 pages)

            Dion Banks challenges his convictions and sentences following a bench trial.  Banks maintains the district court applied the incorrect standard when deciding his motion for new trial based on the weight of the evidence, considered improper factors when deciding his sentence, and wrongly ordered him to pay any appellate attorney fees he incurred in the future (without the benefit of a hearing on his reasonable ability to pay).  Additionally, in his supplemental pro se brief, Banks raises a number of other issues.  OPINION HOLDS: The district court did not apply the wrong standard in deciding Banks’ motion for new trial, and it did not abuse its discretion in denying the motion.  Banks has not established the court relied on improper factors when deciding his sentence, so we find no abuse of discretion there either.  However, the court erred in ordering Banks to pay any fees incurred for his appointed public appellate attorney unless he affirmatively requests a hearing on his reasonable ability to pay, so we vacate that portion of the sentencing order and remand for the entry of a corrected sentencing order.  We are unable to reach the merits of any of Banks’ pro se claims. 

Case No. 18-0849:  State of Iowa v. Major Calvin Moore Jr.

Filed Jan 09, 2020

View Opinion No. 18-0849

            Appeal from the Iowa District Court for Scott County, Thomas G. Reidel, Judge.  AFFIRMED.  Considered by Tabor, P.J., Mullins, J., and Vogel, S.J.  Opinion by Vogel, S.J.  (3 pages)

            Major Moore Jr. appeals his sentence for criminal mischief in the third degree.  OPINION HOLDS: The district court did not abuse its discretion in imposing a term of incarceration, and we affirm Moore’s sentence.

Case No. 18-0945:  State of Iowa v. James R. Montgomery

Filed Jan 09, 2020

View Opinion No. 18-0945

            Appeal from the Iowa District Court for Polk County, Carol S. Egly, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Carr, S.J.  Opinion by Carr, S.J.  (3 pages)

            James Montgomery appeals his conviction and sentence after pleading guilty to an aggravated-misdemeanor charge of eluding.  OPINION HOLDS: Because a review of the entire record before the district court at the time of the plea hearing provides an objective factual basis for the plea, counsel did not breach a duty in allowing Montgomery to plead guilty. 

Case No. 18-1052:  Edward A. Campbell v. State of Iowa

Filed Jan 09, 2020

View Opinion No. 18-1052

            Appeal from the Iowa District Court for Scott County, Stuart P. Werling, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Blane, S.J.  Opinion by Blane, S.J.  (13 pages)

            A postconviction-relief (PCR) applicant appeals the denial of his application.  OPINION HOLDS: The PCR court properly ruled on applicant’s pretrial motions and denied the PCR application.

Case No. 18-1075:  Terry L. Schott, Sr. v. State of Iowa

Filed Jan 09, 2020

View Opinion No. 18-1075

            Appeal from the Iowa District Court for Chickasaw County, Margaret L. Lingreen, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Terry Schott appeals from the district court’s denial of his application for postconviction relief, arguing (1) his trial attorneys were ineffective in connection with plea discussions he rejected; (2) the postconviction court erred in rejecting his claim of newly-discovered evidence; and (3) the postconviction court should have granted a new trial based on the trial court’s denial of his requests for expert witnesses.  OPINION HOLDS: We affirm the court’s denial of Schott’s application for postconviction relief.

Case No. 18-1179:  State of Iowa v. Eric John Hellman

Filed Jan 09, 2020

View Opinion No. 18-1179

            Appeal from the Iowa District Court for Guthrie County, Terry Rickers, Judge.  CONDITIONALLY AFFIRMED AND REMANDED WITH INSTRUCTIONS.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J. (9 pages)

            Eric Hellman appeals his conviction and sentence for assault causing bodily injury.  He makes the following arguments on appeal: (1) his counsel was ineffective for multiple reasons, (2) the district court applied the wrong standard when deciding his motion for new trial, (3) the district court illegally imposed court costs without making a finding of reasonable ability to pay, and (4) his no-contact order was an illegal sentence.  OPINION HOLDS: We preserve all but one of Hellman’s ineffective-assistance claims.  We vacate the district court’s denial of the motion for new trial.  As for the sentencing issues, we vacate the imposition of costs, the finding of an intimate partner relationship, and the firearm prohibition.  We remand with directions.

Case No. 18-1215:  State of Iowa v. Tavish Coleon Shackford

Filed Jan 09, 2020

View Opinion No. 18-1215

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Doyle, P.J., Greer, J., and Potterfield, S.J.  Opinion by Greer, J. (9 pages)

           

            Tavish Shackford appeals the district court’s resentencing order after his conviction for one count of willful injury causing bodily injury.  Shackford argues the court erred in assessing all court costs against him, including correctional fees, without considering (1) whether to apportion any of the costs between two criminal counts or (2) whether he had a reasonable ability to pay the costs.  OPINION HOLDS: We conclude Shackford is liable for the correctional fees attributable to the time he spent in jail after his conviction for a forcible felony when our court overturned that conviction for lack of evidence.  We also conclude Shackford was not entitled to a reasonable ability to pay determination regarding correctional fees, but he was entitled to that determination regarding court costs.  We remand for the entry of a restitution order.

Case No. 18-1337:  State of Iowa v. Dion Banks

Filed Jan 09, 2020

View Opinion No. 18-1337

            Appeal from the Iowa District Court for Scott County, Joel W. Barrows, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J. (7 pages)

            Dion Banks appeals his conviction for delivery of heroin, claiming the district court abused its discretion during sentencing.  OPINION HOLDS: We find the court did not abuse its discretion and affirm.

Case No. 18-1377:  Fred Moore v. State of Iowa

Filed Jan 09, 2020

View Opinion No. 18-1377

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED.  Considered by Bower, C.J., Mullins, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (8 pages)

            Fred Moore appeals the district court order denying his request for postconviction relief from his conviction of first-degree murder.  OPINION HOLDS:  We determine the district court did not err by finding Moore did not show he was entitled to relief on the basis of newly-discovered evidence.  We also find no error in the district court’s conclusion Moore did not meet the standard necessary to prove his claim of actual innocence.  We affirm the district court’s decision denying Moore’s application for postconviction relief.

Case No. 18-1464:  Tyler Dix, Jason Cattell, Jimmy McCann, and Julie Eller v. Casey's General Stores, Inc. and Casey's Marketing Company

Filed Jan 09, 2020

View Opinion No. 18-1464

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED ON APPEAL; AFFIRMED ON CROSS-APPEAL.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (27 pages)

            The plaintiffs are former Casey’s employees who were fired after a random drug test.  The employees filed claims against Casey’s under the civil cause of action provided in Iowa Code section 730.5(15) (2016).  Casey’s appeals the district court’s award of damages to two of the four plaintiffs and its rejection of Casey’s immunity claim.  The employees cross-appeal the district court’s conclusion Casey’s violated the statute but that they are not aggrieved employees under the statute.  OPINION HOLDS: Based on our interpretation of the statute, Casey’s is not entitled to the statutory immunity.  We find the district court correctly concluded two of the employees were tested without statutory authority, and there is no error in the district court’s grant of awards of front and back pay.  We further find the district court erred in concluding Casey’s committed two other statutory violations.  Because Casey’s conduct substantially complied with the statute in every other respect, the two remaining plaintiffs were not entitled to damages.  We affirm the district court. 

Case No. 18-1528:  State of Iowa v. Mark Anthony Everett

Filed Jan 09, 2020

View Opinion No. 18-1528

            Appeal from the Iowa District Court for Woodbury County, John D. Ackerman, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (10 pages)

            Mark Everett appeals his convictions for first-degree robbery and being a felon in possession of a firearm.  He argues the robbery verdict was against the weight of the evidence, trial counsel was ineffective in failing to object to opinion and vouching testimony, and there was insufficient evidence to support the felon in possession conviction.  OPINION HOLDS: The credible evidence did not preponderate heavily against the first-degree robbery verdict, counsel was not ineffective as alleged, and there is substantial evidence supporting the felon-in-possession conviction.  We therefore affirm.

Case No. 18-1660:  State of Iowa v. Venhure Yosef Tsegay

Filed Jan 09, 2020

View Opinion No. 18-1660

            Appeal from the Iowa District Court for Wapello County, Lucy J. Gamon, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (7 pages)

            Venhure Tsegay appeals his conviction for first-degree robbery.  He claims his sentence of twenty-five years in prison should be considered cruel and unusual punishment because he was eighteen years old at the time of the offense.  He also raises an equal protection challenge.  OPINION HOLDS: We affirm Tsegay’s conviction and sentence,

Case No. 18-1718:  State of Iowa v. Trekel Marquis Barker

Filed Jan 09, 2020

View Opinion No. 18-1718

            Appeal from the Iowa District Court for Woodbury County, Steven J. Andreasen, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J. (8 pages)

            Trekel Barker appeals his convictions for robbery in the first degree, carrying a dangerous weapon, trafficking in stolen weapons, and theft in the fourth degree.  OPINION HOLDS: We find the court did not abuse its discretion in denying Barker’s motion for mistrial, motion for new trial, or motion in arrest of judgment, and his counsel did not provide ineffective assistance by not objecting to a jury instruction.  We affirm.

Case No. 18-1721:  State of Iowa v. Daniel Wayne Ockenfels

Filed Jan 09, 2020

View Opinion No. 18-1721

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg and Robert B. Hanson, Judges, and Becky Goettsch, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (6 pages)

            Daniel Ockenfels appeals his convictions after a jury found him guilty on four charges—driving while barred, eluding law enforcement, disarming a police officer, and assault on a police officer while using or displaying a dangerous weapon.  He challenges the sufficiency of the evidence supporting his convictions for disarming a peace officer and assault on a peace officer while using or displaying a dangerous weapon.  He also claims ineffective assistance of trial counsel.  OPINION HOLDS: Although perhaps another factfinder may have judged the evidence differently, substantial evidence supports the jury’s verdicts when viewed in the light most favorable to the State.  We reject Ockenfels’s claims of ineffective assistance of counsel.

Case No. 18-1793:  State of Iowa v. Nicholas Wayne Burgess

Filed Jan 09, 2020

View Opinion No. 18-1793

            Appeal from the Iowa District Court for Lee (South) County, Mark E. Kruse and Michael J. Schilling, Judges.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (9 pages)

            Nicholas Burgess appeals from the sentence imposed upon his conviction for delivery of a schedule II controlled substance (morphine), contending the prosecutor breached the plea agreement to recommend a suspended sentence and his defense counsel was ineffective in not objecting.  OPINION HOLDS: Given the favorable plea agreement offered by the State, Burgess’s extensive criminal history, and the PSI recommendation, it was reasonable for the prosecutor to acknowledge the defendant’s criminal history to explain the State’s recommendation for a suspended sentence.  We therefore affirm.

Case No. 18-1814:  State of Iowa v. Kyle Leonard Tjaden

Filed Jan 09, 2020

View Opinion No. 18-1814

            Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (4 pages)

            Kyle Tjaden appeals the judgment and sentence entered after pleading guilty to two counts of possession of a controlled substance and one count of fourth-degree theft.  OPINION HOLDS: Because the date is not an element of possession of a controlled substance, Tjaden’s counsel did not breach an essential duty in allowing him to plead guilty when the written plea listed the wrong date of possession.  We cannot determine whether Tjaden was prejudiced when his trial counsel failed to alert the district court that they did not inform Tjaden of the maximum possible sentence before accepting his plea.  We preserve that claim and any others for postconviction relief.

Case No. 18-1818:  Joseph Lee Miller v. State of Iowa

Filed Jan 09, 2020

View Opinion No. 18-1818

            Appeal from the Iowa District Court for Scott County, Stuart P. Werling, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (6 pages)

            Joseph Miller appeals the denial of postconviction relief.  OPINION HOLDS:  Because the court did not err in concluding Miller’s claim was barred by the statute of limitations, we affirm. 

Case No. 18-1931:  In re the Marriage of Barnhouse

Filed Jan 09, 2020

View Opinion No. 18-1931

            Appeal from the Iowa District Court for Dallas County, Thomas P. Murphy, Judge.  AFFIRMED AS MODIFIED.  Heard by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J.  (15 pages)

            Joel Barnhouse appeals from the decree dissolving his marriage to Lynne Barnhouse.  He argues the court should have set aside his gifted and premarital property before dividing the remaining property between the parties.  OPINION HOLDS: We find that some of the realty should be excluded from marital property, and we modify the equalization payment to Lynne.  We otherwise affirm the district court, including the award of spousal support to Lynne.  We also deny Lynee’s request for appellate attorney fees.

Case No. 18-2147:  Capstone Group, Inc. v. Guthrie County Board of Review

Filed Jan 09, 2020

View Opinion No. 18-2147

            Appeal from the Iowa District Court for Guthrie County, Thomas P. Murphy, Judge.  REVERSED AND REMANDED.  Heard by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J.  (9 pages)

            Capstone Group, Inc. (Capstone) appeals from the district court ruling that denied a property tax exemption for its nursing facility.  OPINION HOLDS: We find Capstone is a charitable institution that operates the facility solely for charitable purposes and without a view to pecuniary profit.  Therefore, the entire property qualifies for the property tax exemption.  We reverse the district court and remand for entry of an order exempting the property. 

Case No. 18-2149:  State of Iowa v. Duane Huffer

Filed Jan 09, 2020

View Opinion No. 18-2149

            Appeal from the Iowa District Court for Story County, Steven P. Van Marel, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., May, J., and Blane, S.J.  Per Curiam.  (4 pages)

            Defendant appeals the revocation of his deferred judgment and imposition of sentence which included a condition of probation that he reside in a residential facility.  OPINION HOLDS: Because the district court did not abuse its discretion in either instance, we affirm. 

Case No. 18-2158:  Samir M. Shams v. Sona Hassan

Filed Jan 09, 2020

View Opinion No. 18-2158

            Appeal from the Iowa District Court for Polk County, Sarah E. Crane, Judge.  AFFIRMED.  Considered by Doyle, P.J., Potterfield, S.J., and Carr, S.J.  Opinion by Carr, S.J.  (6 pages)

            Samir Shams appeals the order dismissing his claims of conversion, breach of contract, and breach of fiduciary duty against Sona Hassan following a bench trial.  OPINION HOLDS: Shams’s claim that the district court failed to honor the parties’ stipulation is not preserved for our review.  Finding no error in the district court’s determination that Shams failed to meet his burden of proving his claims, we affirm.

Case No. 18-2161:  Geri Doyle and Geri Doyle, Inc. v. Mark Otto and Otto Law Office, PLLC

Filed Jan 09, 2020

View Opinion No. 18-2161

            Appeal from the Iowa District Court for Jasper County, Martha L. Mertz, Judge.  AFFIRMED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (11 pages)

            Geri Doyle appeals from a grant of summary judgment to her former attorney, Mark Otto, on her claims of legal negligence, breach of fiduciary duty, fraudulent misrepresentation, and for punitive damages.  OPINION HOLDS: Otto met his burden to show there were no genuine issues of material fact that he did not breach his professional duty of skillful, prudent, and diligent representation to Doyle.  As a matter of law, he was entitled to summary judgment, and we affirm. 

Case No. 18-2231:  Chipokas, L.L.C. v. Casey's Marketing Company

Filed Jan 09, 2020

View Opinion No. 18-2231

            Appeal from the Iowa District Court for Linn County, Mitchell E. Turner, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., Mullins, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (13 pages)

            Chipokas, LLC appeals from a summary judgment ruling in favor of Casey’s Marketing Company (Casey’s) that determined Casey’s was not contractually bound to lease certain property from Chipokas.  OPINION HOLDS: A provision of a lease assigned to Casey’s did not require Casey’s to lease an adjoining piece of land upon renewal of the lease because the original lessee did not assign the right to renew the adjoining land to Casey’s and instead retained the right to renew the lease of the adjoining land.

Case No. 18-2237:  State of Iowa v. Michael Wayne Van Essen Jr.

Filed Jan 09, 2020

View Opinion No. 18-2237

            Appeal from the Iowa District Court for Sioux County, Timothy Jarman, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Mullins, J.  (3 pages)

            Michael Van Essen Jr. appeals the revocation of his deferred judgment and the sentence imposed arguing the court failed to state adequate reasons for its decision.  OPINION HOLDS: We affirm the revocation of Van Essen’s deferred judgment and the sentence imposed.

Case No. 19-0002:  Lucas Woods v. Charles Gabus Ford, Inc.

Filed Jan 09, 2020

View Opinion No. 19-0002

           Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (10 pages)

           Charles Gabus Ford fired Lucas Woods after he failed an employee drug test.  Woods filed a petition at law asserting he was wrongfully terminated because Gabus Ford violated Iowa Code section 730.5 (2017)—Iowa’s private sector employee drug-and-alcohol-testing statute.  On appeal from dismissal of his petition, Woods asserts Gabus Ford did not: (1) send its certified mailing of the post-test notice return receipt requested as required in subsection (7)(j)(1); (2) establish it complied with the supervisory personnel training described in subsection (9)(h); and (3) include in its notice to Woods the cost of a confirmatory drug test as required in subsection (7)(j)(1).  OPINION HOLDS: Upon our review of the record, we find no reversible error in Woods’s first two claims.  But we agree Gabus Ford’s failure to include the cost of the confirmatory drug test in its post-test notice to Woods violated the statute.  So we reverse and remand for further proceedings.

Case No. 19-0010:  Presbyterian Homes & Services, Inc., d/b/a Mill Pond and Zurich American Insurance Company v. Mary Buchanan

Filed Jan 09, 2020

View Opinion No. 19-0010

            Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Greer, J., and Potterfield, S.J.  Opinion by Potterfield, S.J.  (23 pages)

            Presbyterian Homes & Services, Inc., doing business as Mill Pond, and its insurer Zurich American Insurance Company appeal the district court order affirming in part and reversing in part a final decision of the Iowa Workers’ Compensation Commission. The claimant, Mary Buchanan, cross-appeals. Appellants argue the district court erred by finding (1) the commissioner’s factual findings on medical causation were supported by substantial evidence; and (2) the commissioner’s determination Buchanan had sustained sixty-five percent industrial disability as a result applied the correct legal standard and was supported by substantial evidence.  On cross appeal, Buchanan argues the district court erred by reversing the final decision awarding her penalty benefits.  OPINION HOLDS: Substantial evidence supported the commissioner’s finding on medical causation.  The commissioner’s industrial disability rating was supported by substantial evidence and not irrational, illogical, or wholly unjustifiable.  The district court correctly reversed the commissioner’s award of penalty benefits.  We affirm.

Case No. 19-0015:  Harris Steel Group, Inc. and American Zurich Insurance Company v. Justin Botkin

Filed Jan 09, 2020

View Opinion No. 19-0015

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

            An employer appeals following judicial review of a worker’s compensation decision granting an application for alternate medical care.  OPINION HOLDS: The agency properly granted alternate medical care.  The employer conceded that it had authorized the employee’s care with the doctor from whom the employee sought to continue treatment and never told the employee it would no longer authorize treatment with the doctor.  The employee thus was entitled to continue care with that doctor as long as the doctor indicated the treatment related to the work injury.

Case No. 19-0054:  In the Matter of the Estate of Robert Earl Siefkas, Deceased.

Filed Jan 09, 2020

View Opinion No. 19-0054

            Appeal from the Iowa District Court for Clarke County, John D. Lloyd, Judge.  AFFIRMED AS MODIFIED.  Heard by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.  Opinion by Mullins, J.  (7 pages)

            Michael Siefkas appeals a district court order in a proceeding concerning his father’s estate.  Michael argues the district court erred in determining a jointly-held account should be listed on the estate inventory and was subject to attorney fees.  He also argues the jointly-held account was not an estate asset.  OPINION HOLDS: The account was held in joint tenancy with rights of survivorship between the decedent and his two sons.  Accordingly, it was not an estate asset and ownership of the account passed automatically to the survivors.  However, because assets held in joint tenancy are considered gross assets of the estate for tax purposes, the account was properly included on the inventory form and may be considered in the court’s discretionary award of a reasonable attorney fee.  We offer no opinion as to how much should be allowed by the court as a reasonable fee. 

Case No. 19-0092:  In re the Marriage of Freiberg

Filed Jan 09, 2020

View Opinion No. 19-0092

            Appeal from the Iowa District Court for Marshall County, John J. Haney, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED ON APPEAL; AFFIRMED ON CROSS-APPEAL.  Heard by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.  Opinion by Vaitheswaran, P.J.  (9 pages)

            Brian Freiberg appeals, and Amanda Freiberg cross-appeals, the district court’s denial of their respective requests to modify their dissolution decree.  OPINION HOLDS: We affirm on the issues raised in Amanda’s cross-appeal.  On Brian’s appeal, we affirm all aspects of the modification decree except we reverse the visitation portion of the decree and remand for substitution of Brian’s requested visitation provision and for reconsideration of child support in light of the change.

Case No. 19-0114:  State of Iowa v. Tasha Lynne Koppes

Filed Jan 09, 2020

View Opinion No. 19-0114

            Appeal from the Iowa District Court for Dubuque County, Mark T. Hostager, District Associate Judge.  CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED FOR RESENTENCING..  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Vaitheswaran, P.J.  Dissent by Ahlers, J.  (7 pages)

            Tasha Koppes appeals her sentence following her guilty plea to interference with official acts resulting in bodily injury, claiming the court relied on impermissible factors in sentencing her.  OPINION HOLDS: We conclude an unproven or unprosecuted substance-abuse related offense was considered in sentencing.  We vacate the sentence and remand for resentencing.  DISSENT ASSERTS: I believe the district court did not improperly consider any unprosecuted or unproven offenses in issuing Tasha Koppes’s sentence.  I believe her sentence was within the court’s discretion, and I would affirm.

Case No. 19-0199:  In the Interest of K.H., Minor Child

Filed Jan 09, 2020

View Opinion No. 19-0199

            Appeal from the Iowa District Court for Scott County, Gary P. Strausser, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (5 pages)

            K.H. appeals his adjudication as a delinquent for assault with intent to commit sexual abuse.  OPINION HOLDS: Because substantial credible evidence supports the elements of that offense, we affirm the delinquency adjudication. 

Case No. 19-0230:  State of Iowa v. Derek Thompson

Filed Jan 09, 2020

View Opinion No. 19-0230

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Doyle, P.J., Schumacher, J., and Scott, S.J.  Opinion by Scott, S.J. (4 pages)

            Derek Thompson appeals the sentences imposed upon his convictions of possession of a controlled substance with intent to deliver and failure to affix a drug-tax stamp.  He argues the court improperly ordered him to pay court costs on a dismissed count and a drug abuse resistance education surcharge without first determining his reasonable ability to pay the same.  He also argues the imposition of law enforcement initiative surcharges violates his right to equal protection under the state and federal constitutions.  OPINION HOLDS: We vacate the sentencing order’s assessment of court costs and remand the matter to the district court for the receipt of a final restitution plan and subsequent assessment of Thompson’s reasonable ability to pay.  We affirm the remainder of the sentence imposed.

Case No. 19-0236:  State of Iowa v. Jason Thomas Purtilo

Filed Jan 09, 2020

View Opinion No. 19-0236

            Appeal from the Iowa District Court for Jasper County, Steven J. Holwerda, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Vaitheswaran, P.J.  (3 pages)

            Jason Purtilo appeals following his guilty plea to public intoxication, third or subsequent offense, arguing the protocol for stipulations to prior convictions for sentencing enhancement purposes “should be extended to [his] case.”  OPINION HOLDS: We affirm Purtilo’s conviction, judgment, and sentence for public intoxication, third or subsequent offense.

Case No. 19-0244:  RSB Entertainment, LLC d/b/a Plaza Bowl and Richard J. Moores v. Heritage Bank, N.A.

Filed Jan 09, 2020

View Opinion No. 19-0244

            Appeal from the Iowa District Court for Woodbury County, Julie A. Schumacher, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR NEW TRIAL.  Considered by Vaitheswaran, P.J., Mullins, J., and Gamble, S.J.  Schumacher, J., takes no part.  Opinion by Gamble, S.J.  (12 pages)

            RSB Entertainment, LLC and Richard Moores appeal from the district court’s summary judgment ruling and dismissal of their claim for damages.  They challenge the district court’s summary judgment ruling determining certain equipment amounted to fixtures to real property.  They also claim disposition of secured collateral was not commercially reasonable.  OPINION HOLDS: The district court properly granted summary judgment determining the equipment amounted to fixtures.  The district court applied the incorrect legal test in determining commercial reasonableness and entitlement to a deficiency.

Case No. 19-0256:  Shenyang Jinli Metals v. Sivyer Steel Corporation

Filed Jan 09, 2020

View Opinion No. 19-0256

            Appeal from the Iowa District Court for Scott County, Joel W. Barrows and Mark D. Cleve, Judges.  AFFIRMED.  Heard by Vaitheswaran, P.J., Mullins, J., and Gamble, S.J.  Opinion by Vaitheswaran, P.J.  (7 pages)

            A judgment creditor appeals from a district court ruling that it was entitled to the judgment debtor’s funds subject to a bank’s security interest.  OPINION HOLDS: The district court did not err in denying the judgment creditor’s motion for order of judgment and granting the bank’s motion for application of the funds to the judgment debtor’s indebtedness.

Case No. 19-0384:  Larry Lee Smith v. State of Iowa

Filed Jan 09, 2020

View Opinion No. 19-0384

            Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Mullins, J.  (3 pages)

            Larry Smith appeals the summary disposition of his application for postconviction relief and statute-of-limitations grounds.  OPINION HOLDS: We affirm the summary disposition of Smith’s application. 

Case No. 19-0431:  No Boundry, LLC v. Cornell Hoosman

Filed Jan 09, 2020

View Opinion No. 19-0431

            Appeal from the Iowa District Court for Black Hawk County, Andrea Dryer, Judge.  AFFIRMED.  Heard by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (8 pages)

            Cornell Hoosman appeals from the district court’s denial of his motion to set aside a default judgment.  OPINION HOLDS: The district court did not abuse its discretion by refusing to set aside the default judgment. 

Case No. 19-0543:  In re the Marriage of Toop

Filed Jan 09, 2020

View Opinion No. 19-0543

            Appeal from the Iowa District Court for Linn County, Kevin McKeever, Judge.  AFFIRMED.  Heard by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (8 pages)

            Angela Toop appeals the shared physical care provision of the decree dissolving her marriage with Brian Scott Toop.  OPINION HOLDS: We agree with the trial court shared physical care is in the best interest of the children and we therefore affirm.

Case No. 19-0612:  In re the Marriage of Weier

Filed Jan 09, 2020

View Opinion No. 19-0612

            Appeal from the Iowa District Court for Crawford County, Tod J. Deck, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (6 pages)

            Nicholas Weier appeals the modification order placing physical care of their two sons with his ex-wife Trisha Iversen.  Nicholas contends he would be the superior caregiver and that granting him physical care would “minimize the change in the children’s lives.”  In the alternative, Nicholas asks for additional visitation time.  OPINION HOLDS: After our independent review of the record and issues raised, we concur in the opinion of the district court that granting Trisha physical care is in the children’s best interests.  We also decline to alter the visitation schedule.

Case No. 19-0746:  State of Iowa v. Jesus Delgado-Jimenez

Filed Jan 09, 2020

View Opinion No. 19-0746

            Appeal from the Iowa District Court for Woodbury County, Patrick H. Tott, Judge.  REVERSED AND REMANDED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J. (6 pages)

            We must decide if the district court properly granted a motion to suppress evidence.  The State argues the automobile exception applies to the warrantless search of the vehicle Jesus Delgado-Jimenez drove.  OPINION HOLDS: The State established the necessary probable cause and exigent circumstances to justify the automobile exception.  As a result, we reverse the district court and remand for further proceedings. 

Case No. 19-0757:  In the Matter of K.S., Alleged to Be Seriously Mentally Impaired

Filed Jan 09, 2020

View Opinion No. 19-0757

            Appeal from the Iowa District Court for Johnson County, Kevin McKeever, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (6 pages)

            K.S., a felon in the custody of the Iowa Department of Corrections (DOC), challenges the district court decision ordering him to be involuntarily hospitalized.  He contends although he has a diagnosis of schizophrenia, the record doe