SUMMARIES OF DECISIONS, IOWA COURT OF APPEALS - July 25, 2012

Posted on Aug 03, 2012

SUMMARIES OF DECISIONS, IOWA COURT OF APPEALS - July 25, 2012

Pursuant to Iowa Supreme Court Rule 6.14(5), an unpublished opinion of the Iowa Court of Appeals may be cited in a brief; however, unpublished opinions shall not constitute controlling legal authority.

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No. 11-0621. [2-458] STATE v. KENSETT

Appeal from the Iowa District Court for Henry County, Michael J. Schilling (motion to suppress) and Cynthia H. Danielson (trial and sentencing), Judges. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Vogel, P.J. (13 pages)

Defendant, Jason Matthew Kensett, appeals the district court's ruling finding him guilty of manufacturing more than five grams of methamphetamine and possessing anhydrous ammonia and lithium with the intent that the products be used to manufacture methamphetamine. Kensett asserts the district court erred in denying his motion to suppress evidence obtained through an invalid search warrant. He also claims counsel rendered ineffective assistance in challenging the validity of the search warrant. OPINION HOLDS: We agree with the district court's decision finding the warrant application contained plenty of evidence of the credibility of the information supplied by the confidential informant. We therefore find the magistrate had a substantial basis for concluding probable cause existed to justify the search of Kensett's property. We also find Kensett's ineffective-assistance-of-counsel claim must fail as Kensett has failed to prove the result of the suppression hearing would have been different had his counsel made the claim that law enforcement improperly omitted information regarding the confidential informant's mental status at the time the informant gave his statement.

No. 12-0303. [2-474] IN RE MARRIAGE OF HUSEMAN

Appeal from the Iowa District Court for Clinton County, Gary D. McKenrick, Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Vogel, P.J. (6 pages)

Joseph Huseman III appeals a district court's order modifying his child support obligations after his 2006 dissolution of marriage from Michelle Huseman. OPINION HOLDS: Because the overpayments Joseph made do not fall into the category of situations in which equity requires they be treated as credits, the voluntary payments will not count as such. Joseph's arguments as to why he should be awarded the tax exemptions for all the children are not persuasive. We further find that the district court's award of attorney fees to Michelle was within its discretion, we affirm on this issue as well.

No. 11-0827. [2-225] STATE v. WHEELER

Appeal from the Iowa District Court for Polk County, Douglas Staskal, Judge. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Heard by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Vaitheswaran, P.J. Tabor and Mullins, JJ., take no part. (8 pages)

A defendant appeals a district court order denying his motion to tax costs and fees to the State following the State's dismissal of a charge of non-felonious misconduct in office. OPINION HOLDS: The defendant should not have been taxed with court costs related to a court reporter fee since the misdemeanor charge against him was dropped. However, the district court appropriately denied the defendant's application for deposition and transcript costs to be taxed to the State as well as his application for his attorney fees to be paid by the State.

No. 11-1578. [2-438] IN RE MARRIAGE OF DILLON

Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Vaitheswaran, P.J. Tabor, J., takes no part. (8 pages)

Angela Dillon appeals the custodial and economic provisions of a decree dissolving her marriage to Jon Dillon. She contends the district court acted inequitably in (1) declining to grant her request for physical care of their child and (2) distributing their property and debts. OPINION HOLDS: On our de novo review of the record, we affirm the district court's decision to place the child in the parties' joint physical care and its division of their property and debts.

No. 11-0989. [2-495] CARTER v. BENJAMIN

Appeal from the Iowa District Court for Scott County, Gary D. McKenrick, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Vaitheswaran, P.J. (5 pages)

A plaintiff appeals a district court order dismissing her petition due to a delay in serving the defendant with original notice of the lawsuit. OPINION HOLDS: The district court's determination that the attempts at service did not amount to good cause for delay in service is supported by substantial evidence and we affirm the district court's dismissal of the plaintiff's petition.

No. 11-1475. [2-506] STATE PUBLIC DEFENDER v. DISTRICT COURT

Certiorari to the Iowa District Court for Wapello County, Kirk A. Daily, District Associate Judge. WRIT ANNULLED. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Vaitheswaran, P.J. (4 pages)

In this consolidated proceeding, the state public defender challenges the legality of district court orders requiring the payment of an attorney's fee claims the defender denied as untimely. OPINION HOLDS: As it is undisputed that the attorney filed his fee claims within forty-five days of the withdrawal orders, which was the earliest of the proceedings specified in Iowa Code section 815.10A(2) (2011), the district court did not err in concluding that his fee applications were timely. We accordingly annul the writ.

No. 11-1145. [2-297] SUNRISE RETIREMENT COMMUNITY v. DHS

Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge. REVERSED AND REMANDED WITH DIRECTIONS. Heard by Eisenhauer, C.J., and Potterfield and Doyle, JJ. Opinion by Potterfield, J. (15 pages)

We filed our decision in this appeal on June 27, 2012, but subsequently granted DHS's petition for rehearing. Our June 27 decision is therefore vacated, and this decision replaces it. This is an administrative law appeal from a decision by the director of the Iowa Department of Human Services (DHS), which was affirmed on judicial review by the district court. The director's decision upheld the disallowance by its auditors of costs for laboratory services, x-rays, and prescription drugs traditionally included on the annual reports required to be filed by nursing homes. All parties agree that the costs listed on the reports had been incurred on behalf of Medicare patients for lab services, x-rays, and prescription drugs received by the patients, and had been paid by the nursing homes. The issue is whether the director's decision to disallow the costs is in compliance with the administrative rules governing the cost reports and whether the change in practice with respect to lab services and x-rays is within the scope of Iowa Code section 17A.19(10)(h) (2011). The district court acknowledged the change, but concluded that the director had appropriately justified the inconsistency per section 17A.19(10)(h). OPINION HOLDS: Because administrative rules governing the payment rate for nursing facilities do not exclude the costs expended for Medicare Part A patient lab, x-ray, and prescription drug services, which the facilities must annually report as costs—and, with respect to lab services and x-rays, in the past had been considered by DHS to be "allowable costs"—we reverse and remand with directions to return this matter to the agency.

No. 11-0597. [2-422] CAGLE v. PILOT TRAVEL CENTERS

Appeal from the Iowa District Court for Scott County, Gary D. McKenrick, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Potterfield, J. (6 pages)

Christopher Cagle appeals from district court rulings against him following a jury trial verdict in favor of Pilot Travel Centers, L.L.C. in his personal injury action contending (1) the district court erred in denying inclusion of his negligence specifications in the jury instructions, and (2) the district court erred in assessing certain costs against him. OPINION HOLDS: I. Failure to submit multiple negligence specifications to jury did not constitute error as the specifications were unsupported by sufficient evidence or cumulative. II. Assessed costs are supported by statute.

No. 11-1585. [2-439] IN RE MARRIAGE OF REINKING

Appeal from the Iowa District Court for Howard County, Todd A. Geer, Judge. AFFIRMED AND REMANDED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Potterfield, J. (7 pages)

Jeffrey (Jeff) Reinking appeals the economic and child custody provisions of the decree dissolving his marriage to Lori Reinking, now known as Lori Roeder. Jeff contends the district court miscalculated his annual income for purposes of child support; erred in its assessment of the value of farmland; should not have placed the parties' minor child in Lori's physical care; and should have assessed some of the tax consequences of the sale of farmland that would be required to pay Lori the property settlement. OPINION HOLDS: Because we find the property valuation was within the permissible range of evidence; no failure to do equity in the court's distribution of marital property; and that physical care was properly placed; we uphold these provisions of the decree. However, we remand for recalculation of child support. We therefore affirm and remand.

No. 11-1040. [2-496] SHAH v. STATE

Appeal from the Iowa District Court for Woodbury County, John D. Ackerman, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Potterfield, J. Tabor, J., takes no part. (4 pages)

On appeal from the denial of his application for postconviction relief, Baiju Shah argues he was denied effective assistance of counsel when he entered a guilty plea and received a deferred judgment in 2007. Shah successfully completed his probation and was discharged on August 1, 2008. He claims his counsel failed to adequately advise him of the immigration consequences of his plea to, and his receipt of a deferred judgment for, a charge of forgery. OPINION HOLDS: In Daughenbaugh v. State, 805 N.W.2d 591, 599 (Iowa 2011), our supreme court concluded "a guilty plea pursuant to a deferred judgment is not a conviction under Iowa's postconviction relief statute," and consequently, Shah is not entitled to postconviction relief. We therefore affirm the denial of his application.

No. 11-1422. [2-505] STATE v. PARKER

Appeal from the Iowa District Court for Clinton County, Charles H. Pelton, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Potterfield, J. (6 pages)

Barbara Parker appeals from her conviction for theft, asserting (1) insufficient evidence was presented to support the conviction and (2) her counsel was ineffective if error was not preserved on the sufficiency-of-the-evidence claim. OPINION HOLDS: I. Error was not preserved on the sufficiency-of-the-evidence claim. II. Counsel's failure to preserve error did not result in prejudice.

No. 10-0350. [2-532] THORP v. STATE

Appeal from the Iowa District Court for Fayette County, Margaret L. Lingreen, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Potterfield, J. Tabor, J., takes no part. (4 pages)

Andrew Thorp appeals from the denial of his application for postconviction relief, contending (1) he was denied due process in not being personally present at the postconviction hearing; (2) the postconviction court failed to "properly weigh the gravity" of his mental health in finding his plea voluntary; and (3) he was denied effective assistance of trial, appellate, and postconviction counsel in failing to address "possible" constitutional arguments regarding his special sentence. OPINION HOLDS: We have considered all issues presented and with respect to the issues properly presented and decided by the district court, we approve of the district court's reasoning and conclusions, and affirm without further discussion as it would add little to augment or clarify existing case law. See Iowa Ct. R. 21.29(1)(d), (e).

No. 10-0896. [2-533] SMITH v. STATE

Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Potterfield, J. Tabor, J., takes no part. (4 pages)

Herold Smith appeals from the denial of his application for postconviction relief, asserting his counsel was ineffective in failing to pursue a defense of diminished capacity. OPINION HOLDS: Counsel's failure to pursue the defense constituted non-prejudicial trial strategy.

No. 11-1968. [2-555] IN RE MARRIAGE OF BECERRA

Appeal from the Iowa District Court for Pottawattamie County, Gregory W. Steensland, Judge. APPEAL DISMISSED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Potterfield, J. (6 pages)

Lenny Becerra appeals from a court order entered after the one-year period for filing a motion to vacate, allowing Rachel Becerra additional time within which to file a motion to vacate the stipulated decree. Rachel Becerra has not filed a response to this appeal. OPINION HOLDS: Because we lack a final ruling by the district court in this case on relevant matters, and it would not be judicially efficient to issue an opinion on the procedural issues raised by Lenny, we dismiss the appeal.

No. 12-0941. [2-586] IN RE S.J.

Appeal from the Iowa District Court for Plymouth County, Robert J. Dull, District Associate Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Potterfield, J. (4 pages)

A father appeals the termination of his parental rights, asserting the juvenile court erred in finding his efforts at reunification were insufficient. OPINION HOLDS: We find clear and convincing evidence exists to terminate the rights, termination is in child's best interests, and no factor weighs against termination. Therefore, we affirm.

No. 11-1251. [2-336] LARY v. HAN

Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge. AFFIRMED. Heard by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Doyle, J. (13 pages)

Rae Lary appeals from the district court's grant of summary judgment dismissing her lawsuit for medical negligence. OPINION HOLDS: Because we agree with the district court that expert testimony was required under the circumstances to establish a prima facie case of medical negligence against the defendants, we accordingly affirm the district court's grant of the defendants' motion for summary judgment.

No. 11-0007. [2-420] STATE v. MUTCHLER

Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Doyle, J. (13 pages)

Richard Mutchler appeals his convictions for first-degree murder challenging the sufficiency of the evidence and failure to sever the two murder charges, as well as pro se ineffective-assistance-of-counsel claims. OPINION HOLDS: Considering all of the evidence in the record in the light most favorable to the State and making all reasonable inferences that may fairly be drawn, we find the evidence in this case substantially supports the jury's guilty verdicts and therefore affirm the district court's denial of Mutchler's motion for judgment of acquittal. We find his claim that his trial counsel was ineffective for failing to pursue severance of the two murder charges to be without merit, as any motion to sever would not have been successful and Mutchler could not establish the requisite prejudice. Mutchler's convictions and sentences for first-degree murder are affirmed, and we preserve his pro se ineffective-assistance-of-counsel claims for possible postconviction relief proceedings.

No. 11-0301. [2-421] STATE v. MUTCHLER

Appeal from the Iowa District Court for Polk County, David L. Christensen, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Doyle, J. (19 pages)

Richard Mutchler appeals from his conviction for first-degree robbery challenging the sufficiency of the evidence, the denial of his motion for a mistrial, the denial of his challenge for cause of a juror, and the effectiveness of his trial counsel. OPINION HOLDS: Because a reasonable jury could conclude, based upon the evidence presented at trial, that the tire iron used by Mutchler was a dangerous weapon and that Mutchler had an "intent to permanently deprive" the victim of his vehicle, we find sufficient evidence supported Mutchler's conviction for robbery in the first degree. Accordingly, we find no error in the district court's denial of his motion for judgment of acquittal. Additionally, we affirm the district court's denial of Mutchler's motion for a mistrial because we find the State's alleged misconduct was not unduly prejudicial and Mutchler failed to show he was prejudiced by the alleged misconduct. The district court did not abuse its discretion in denying Mutchler's challenge of a prospective juror for cause. Finally, we find Mutchler cannot establish he was prejudiced by his counsels' failure to request additional language be included in the theft definition jury instruction, as the inclusion of the language would not have changed the outcome of his trial. We therefore affirm Mutchler's conviction and sentence, and we preserve his pro se ineffective-assistance-of-counsel claims for possible postconviction relief proceedings.

No. 11-0995. [2-427] GRAVES v. STATE

Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Doyle, J. (8 pages)

Shon Graves appeals from the district court's denial of his application for postconviction relief. He claims postconviction counsel was ineffective for failing to call any witnesses at the hearing on his application. In a pro se brief, he additionally claims trial and appellate counsel were ineffective in multiple respects. OPINION HOLDS: We affirm the district court's denial of Graves's application for postconviction relief upon our de novo review of the record.

No. 11-1383. [2-542] ALVAREZ MENDOZA v. STATE

Appeal from the Iowa District Court for Dallas County, Darrell J. Goodhue, Judge. AFFIRMED ON BOTH APPEALS. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Doyle, J. Tabor, J., takes no part. (7 pages)

In these consolidated appeals from the dismissal of applications for postconviction relief invoking the United States Supreme Court's recent decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), we are asked to decide whether the discovery rule applied in medical malpractice cases should toll the statute of limitations for postconviction relief actions. OPINION HOLDS: We decline the applicants' request to engraft the medical malpractice discovery rule upon Iowa Code section 822.3 (2011) and affirm the judgment of the district court.

No. 11-1855. [2-553] ASCHENBRENNER v. STATE

Appeal from the Iowa District Court for Mahaska County, Daniel P. Wilson, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Doyle, J. (5 pages)

Michael Aschenbrenner appeals from the denial of his application for postconviction relief, contending he received ineffective assistance of counsel because his trial attorney erroneously advised him regarding sex offense classifications. OPINION HOLDS: Upon our de novo review of the record, we agree with the district court that Aschenbrenner failed to prove there was a reasonable probability that, but for his trial counsel's errors, Aschenbrenner would have insisted on going to trial and not have pleaded guilty. Because Aschenbrenner cannot establish the requisite prejudice, we affirm the district court's denial of his application for postconviction relief.

No. 11-1027. [2-229] JEFFRIES v. AHROLD-FAY

Appeal from the Iowa District Court for Jasper County, Darrell Goodhue, Judge. AFFIRMED. Heard by Potterfield, P.J., and Mullins and Bower, JJ. Opinion by Bower, J. (14 pages)

The district court granted summary judgment in favor of defendant Heritage Mutual Insurance Company after finding the commercial insurance policy Heritage issued to Reed Construction did not provide coverage for a fatal accident caused by Orval Kopp, an employee of Larry Reinier, where Reed Construction hired Reinier to deliver a truckload of asphalt. The question before us is whether coverage exists under the Heritage policy where the policy requires that Kopp was using, with Reed Construction's "permission," a vehicle Reed Construction "owned, hired, or borrowed." OPINION HOLDS: Upon our review, we find the vehicle at issue in this case was not owned, hired, or borrowed by Reed Construction; rather, Reed Construction hired Reinier to provide the service of delivering asphalt and Reinier retained the right to control the vehicle. In addition, Reed Construction did not give Kopp, Reinier's employee, permission to use Reinier's vehicle. We further find no error in the district court's denial of the motion to compel the parties' settlement agreement. Accordingly, we affirm.

No. 11-1492. [2-274] MACIAS v. RIVERA

Appeal from the Iowa District Court for Scott County, Paul Macek, Judge. REVERSED AND REMANDED. Heard by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Danilson, J. (16 pages)

Tarsicio Macias, d/b/a Nuestra Gente, L.L.C., brought an action against his former partner, Alan Rivera, alleging libel per se, unfair competition, and trade name dilution. Rivera filed a counterclaim alleging fraudulent misrepresentation, fraudulent nondisclosure, breach of fiduciary duty, and unfair competition. Macias was unrepresented by counsel during approximately nine months of the pretrial proceedings, failed to comply with discovery and court orders directing such compliance, and failed to pay monetary sanctions imposed by the court. After voluntary dismissal of his claims, the district court sanctioned Macias by entering a default judgment on the counterclaim and prohibiting Macias from providing any evidence at the hearing to determine damages. Macias appeals the district court ruling and judgment. OPINION HOLDS: We find the trial court abused its discretion by preventing Macias from participating in the damage hearing. We reverse and remand for a new hearing on damages.

No. 11-1754. [2-392] GODFREDSON v. FORD MOTOR CO.

Appeal from the Iowa District Court for Woodbury County, Duane E. Hoffmeyer, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., Doyle, J., and Miller, S.J. Opinion by Miller, S.J. (17 pages)

Mark Godfredson purchased a Ford Mustang from a dealer for $54,916, on July 16, 2005. The vehicle had been substantially modified by Saleen Performance Parts, Inc. In a deposition, Godfredson testified a salesman told him the vehicle was covered by a bumper-to-bumper warranty from Ford Motor Company (Ford) for three years or 36,000 miles. The vehicle was covered by a written Ford limited warranty. Godfredson had problems with the engine, which Ford refused to repair because the limited warranty did not apply if there had been alterations or modifications to the vehicle after it left the control of Ford, or if problems were caused by non-Ford parts. Godfredson filed this action against Ford under the federal Magnuson-Moss Warranty Act. The district court denied Godfredson's motion to compel discovery. The court granted summary judgment to Ford, finding that the modifications by Saleen were the cause of the problem and Ford no longer retained control over the vehicle when it was sent to Saleen, so Ford did not have an obligation to repair or replace the parts. Godfredson appeals. OPINION HOLDS: I. We conclude the district court did not abuse its discretion in denying the motion to compel. Godfredson had ample opportunity to conduct discovery prior to the hearing on summary judgment, he did not identify any information he failed to receive, and even if Ford's answers were inaccurate or incomplete, Ford had a continuing duty to supplement its answers. II. The issue of adhesion contracts was not preserved for our review. We find no error in the court's conclusion that the term "control" as used in the limited warranty means the ability of Ford to alter or modify the vehicle, or to install parts. We find no error in the district court's conclusion that there was no genuine issue of material fact as to whether the vehicle remained in the control of Ford at the time it was modified by Saleen. All of the affidavits and other evidence submitted in connection with the motion for summary judgment support only a finding that the problems with the vehicle were caused by the modifications made by Saleen. Furthermore, we conclude there is no factual basis to support Godfredson's claim that a statement by a salesman for a dealer created a greater warranty than that provided in the Ford written limited warranty.

No. 11-0790. [2-398] IN RE MARRIAGE OF REIS AND STOWERS

Appeal from the Iowa District Court for Polk County, Gary G. Kimes, Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Bower, J. (15 pages)

Jan Reis appeals, and Dean Stowers cross-appeals, from the economic provisions of the decree dissolving their marriage. Jan contends the district court erred in its property distribution. She also contends she should be awarded a greater amount of spousal support, while Dean contends the award is too great. Finally, Jan contends the district court erred in declining to award her trial attorney fees. On appeal, both parties seek an award of their appellate attorney fees. OPINION HOLDS: Because we find the decree is equitable under the facts of this case, we affirm. The district court did not abuse its discretion in declining to award Jan her attorney and expert witness fees. We decline to award either party their attorney fees on appeal.

No. 11-1313. [2-432] STATE v. SULJEVIC

Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer, Judge. AFFIRMED IN PART AND REVERSED IN PART. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. (10 pages)

Anis Suljevic appeals from sentences imposed after guilty pleas. Suljevic pled guilty on four counts. He challenges only his sentences for robbery in the second degree and assault while participating in a felony, claiming they should have merged. OPINION HOLDS: Because we find the charges should have merged, we reverse in part and affirm in part.

No. 11-1539. [2-437] BROOKS v. WEAR

Appeal from the Iowa District Court for Clayton County, Andrea J. Dryer, Judge. REVERSED AND REMANDED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Mullins, J. (6 pages)

A mother appeals a district court's modification order granting physical care of the parties' child to the father. She argues the trial court erred by refusing to allow her to present any witnesses or exhibits for failing to comply with a scheduling order. OPINION HOLDS: The mother filed a witness and exhibit list for an earlier trial date that was postponed. The trial court should have allowed the mother to introduce the exhibits and witnesses disclosed therein. Accordingly, we reverse and remand for a new trial.

No. 11-1860. [2-443] IN RE MARRIAGE OF SIDDALL AND JOHNSON

Appeal from the Iowa District Court for Jasper County, Darrell Goodhue, Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Bower, J. (12 pages)

Rachena Johnson appeals from the denial of her petition to vacate her dissolution decree. OPINION HOLDS: Upon our review, we affirm the district court's entry of a default decree.

No. 11-0853. [2-492] STATE v. RIVERS

Appeal from the Iowa District Court for Webster County, Kurt L. Wilke (trial) and Gary L. McMinimee (sentencing), Judges. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Bower, J. (2 pages)

Robert Rivers Jr. appeals his conviction and sentence for first-degree robbery, in violation of Iowa Code section 711.2 (2009). Rivers contends (1) the district court erred in overruling his motion for a new trial and (2) his trial counsel was ineffective in failing to object to the prosecutor's closing statements. We affirm.

No. 11-1064. [2-498] STATE v. MILLER

Appeal from the Iowa District Court for Woodbury County, John D. Ackerman, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Danilson, J. (11 pages)

Jacque Miller appeals from conviction of three counts of sexual abuse in the third degree, contending the trial court erroneously denied his challenge for cause, trial counsel was ineffective in several respects, the court imposed an illegal sentence, and other pro se claims. OPINION HOLDS: We affirm Miller's convictions and sentences. We preserve ineffective-assistance-of-counsel claims for possible postconviction proceedings.

No. 11-1276. [2-502] STATE v. SWAIN

Appeal from the Iowa District Court for Polk County, Gregory D. Brandt, District Associate Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Bower, J. (8 pages)

Amanda St. Jude Swain appeals from her conviction for operating while intoxicated, second offense. She contends there is insufficient evidence to show she was under the influence of alcohol at the time of her arrest. She also contends her counsel was ineffective in failing to move to recuse the trial judge or, in the alternative, in failing to seek a withdrawal of her waiver of jury trial. OPINION HOLDS: We conclude ample evidence supports Swain's conviction. Because she is unable to show she was prejudiced by any alleged error by her counsel, we also deny her ineffective-assistance-of-counsel claim.

No. 11-1913. [2-514] IN RE MARRIAGE OF WAHNER

Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Mullins, J. (6 pages)

James Wahner appeals an order granting Linda Wahner's request that a Qualified Domestic Relations Order be prepared to split his pension according to the percentage method, or Benson formula. OPINION HOLDS: There was insufficient evidence introduced at the trial court to divide James's pension according to the present value method, and the district court correctly applied the percentage method as the only equitable alternative.

No. 12-0296. [2-521] IN RE MARRIAGE OF NASS

Appeal from the Iowa District Court for Bremer County, Christopher Foy, Judge. AFFIRMED. Considered by Potterfield, P.J., Mullins, J., and Schechtman, S.J. Opinion by Schechtman, S.J. (8 pages)

Clint and Noel Nass were married on September 17, 2005. They have two children, a son born in 2007, and a daughter born in 2008. Clint works the third shift at John Deere in Waterloo. Noel lives with the children in Hills, Iowa, and works at a post office in Iowa City. The district court granted the parties joint legal custody, with Noel having physical care of the children. Clint appeals. OPINION HOLDS: On our de novo review, the trial court's placement of physical care of the children with Noel is affirmed; she, quite simply, can minister more effectively to the long-range best interests of the children. We have considered the relevant factors in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974), and conclude that those factors point to Noel as the parent to be awarded the awesome responsibility for the children's physical care. Noel was the primary caretaker for the children throughout the marriage. Also, she is the parent more likely to encourage contact between the noncustodial parent and the children. Noel is awarded appellate attorney fees of $1500.

No. 12-0773. [2-529] IN RE L.M.S.

Appeal from the Iowa District Court for O'Brien County, David C. Larson, District Associate Judge. AFFIRMED. Considered by Vogel, P.J., and Tabor and Bower, JJ. Opinion by Bower, J. (5 pages)

A mother appeals from the permanency order regarding custody of her child and the order terminating her parental rights to her child. She contends the juvenile court erred in denying her request to transfer custody of the child to the paternal grandfather and his wife. Subsequently, she seeks to avoid termination of her parental rights due to the child's placement with a relative. OPINION HOLDS: Because of concerns about the family's history of sexual abuse and lack of boundaries and supervision, placement of the child with the paternal grandfather and his wife is not in the child's best interests. We affirm both orders.

No. 10-1666. [2-535] STATE v. BATES

Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Mullins, J. (8 pages)

Defendant, Lonnie Bates Jr., appeals his conviction of sexual abuse in the second degree, in violation of Iowa Code section 709.3 (2009), contending his counsel rendered ineffective assistance during trial by failing to make an adequate motion for judgment of acquittal challenging the sufficiency of the evidence and failing to object to the admission of a photograph. OPINION HOLDS: We find the evidence of Bates's identity as the perpetrator of the crime was sufficiently established by the State. Therefore, we find counsel did not breach an essential duty in failing to challenge the evidence in his motion for judgment of acquittal. We also find Bates cannot establish prejudice as a result of counsel's failure to challenge the admissibility of the photograph in question.

No. 10-1197. [2-559] STATE v. WINTERS

Appeal from the Iowa District Court for Black Hawk County, Jon Fister, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Mullins, J. (4 pages)

Following a bench trial on the minutes of evidence, Jasper Winters appeals challenging the sufficiency of the evidence to sustain his convictions for possession of marijuana, carrying weapons, and introduction of a controlled substance into a detention facility. OPINION HOLDS: I. The description of the knife as an "automatic opening knife" is substantial evidence to support the conclusion reached by the trial court that the knife in question was a switchblade knife and thus a dangerous weapon for his carrying weapons conviction. II. A police investigator would testify that she analyzed the substance found on Winters and the substance was marijuana. Thus, sufficient evidence shows the substance was marijuana to sustain his possession and introduction into a detention facility conviction. We affirm.

No. 12-0937. [2-588] IN RE A.K.

Appeal from the Iowa District Court for Iowa County, Jane F. Spande, District Associate Judge. REVERSED IN PART, AFFIRMED IN PART. Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ. Opinion by Danilson, J. (5 pages)

A mother appeals the juvenile court's imposition of a visitation schedule in its order dismissing CINA proceedings, and thus divesting the court of jurisdiction over the parties. After dismissal of the CINA proceedings, language in the order specifying terms of visitation is mere surplusage that has no controlling effect, as it was entered without jurisdiction. OPINION HOLDS: We vacate the portions of the dismissal order pertaining to visitation and affirm the remainder of the order.

No. 11-1786. [2-604] PENDLETON v. STATE

Appeal from the Iowa District Court for Scott County, J. Hobart Darbyshire, Judge. AFFIRMED. Considered by Vogel, P.J., and Danilson and Mullins, JJ. Opinion by Mullins, J. (4 pages)

Basil Pendleton appeals the dismissal of his application for postconviction relief. OPINION HOLDS: Pendleton has not challenged the district court's finding that his application was time barred by the statute of limitations. In addition, he has failed to show he was prejudiced by his postconviction relief counsel's alleged failures. Accordingly, we affirm the dismissal of his application for postconviction relief.

No. 12-0943. [2-611] IN RE A.S.

Appeal from the Iowa District Court for Buchanan County, Alan D. Allbee, Associate Juvenile Judge. AFFIRMED. Considered by Vogel, P.J., and Danilson and Mullins, JJ. Opinion by Mullins, J. (6 pages)

A mother appeals from the permanency order placing her two daughters in the sole custody of their respective fathers. She contends the juvenile court erred by not granting her an additional six months to work toward reunification. OPINION HOLDS: A six-month extension will not alleviate the sobriety and stability concerns in this case. Accordingly, we affirm.

No. 12-0946. [2-620] IN RE L.N.

Appeal from the Iowa District Court for Iowa County, Russell G. Keast, District Associate Judge. AFFIRMED. Considered by Vogel, P.J., and Danilson and Mullins, JJ. Opinion by Danilson, J. (9 pages)

Jessica is the mother and Joe is the father of three children, L.N., K.N., and M.N. The parents each appeal from the termination of their parental rights. OPINION HOLDS: During the juvenile court proceedings, the mother never made progress with her substance abuse issues, and the father never made a serious attempt in participating in services. Because statutory grounds for termination exist, termination is in the children's best interest, and no consequential factor weighs against termination, we affirm.

No. 10-0775. [2-286] PINEGAR v. STATE

Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Eisenhauer, C.J. Special concurrence by Mullins, J. Dissent by Potterfield, J. (12 pages)

William Pinegar appeals from the district court ruling denying his application for postconviction relief and from the ruling on admission of juror affidavits. He contends the court erred in not finding his trial attorney was ineffective and in ruling the juror affidavits were inadmissible. OPINION HOLDS: The juror affidavits are not admissible under Iowa Rule of Evidence 5.606(b). The district court correctly excluded them. Pinegar failed to demonstrate prejudice, so his ineffective-assistance claim fails. SPECIAL CONCURRENCE ASSERTS: I would find that counsel was ineffective for failing to examine the "miscellaneous papers," but based on all the evidence presented, I also find that Pinegar has not demonstrated prejudice. DISSENT ASSERTS: The juror affidavits are admissible to show the notes were extraneous prejudicial information. In addition, counsel failed in his duty to Pinegar by allowing the wallet to go to the jury without examination of its contents, which resulted in prejudice.

No. 11-0447. [2-324] IN RE MARRIAGE OF RETZ

Appeal from the Iowa District Court for Benton County, Robert Sosalla, Judge. AFFIRMED AS MODIFIED. Heard by Eisenhauer, C.J., and Potterfield and Tabor, JJ. Opinion by Eisenhauer, C.J. (9 pages)

Carmel Retz appeals and Drew Retz cross appeals from the economic, support, and attorney fee provisions of the decree dissolving their marriage. Carmel contends she should receive a cash equalization payment, alimony, and attorney fees. Drew contends his child support and child medical support obligations should be recalculated. OPINION HOLDS: We modify the equalization payment to provide that the parties' retirements accounts first be equalized by a transfer from Drew's 401(k), then the balance be payable in cash once the proceeds from the sale of the parties' home are available. We affirm the district court on all other issues. We award no attorney fees.

No. 11-1861. [2-444] IN RE MARRIAGE OF EGER

Appeal from the Iowa District Court for Hamilton County, Steven J. Oeth, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Eisenhauer, C.J. Danilson, J., takes no part. (6 pages)

A mother appeals a district court order dismissing her application for a modification of child support. OPINION HOLDS: The economic circumstances of the parties have not changed. Accordingly, the mother has failed to prove a substantial change in circumstances. We award appellate attorney fees to father.

No. 11-0594. [2-457] STATE v. RICKS

Appeal from the Iowa District Court for Polk County, Douglas C. Staskal, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Eisenhauer, C.J. (6 pages)

Defendant challenges the court's reasonable doubt instruction on constitutional grounds. Alternatively, defendant argues trial counsel was ineffective. OPINION HOLDS: Although defendant objected to the jury instruction at trial, it was not on the same ground raised on appeal, and issue was not preserved. Trial counsel was not ineffective for failing to make a meritless due process objection to the instruction.

No. 11-0639. [2-488] STATE v. BROOKS

Appeal from the Iowa District Court for Black Hawk County, Bruce B. Zager and Thomas N. Bower, Judges. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Eisenhauer, C.J. Bower, J., takes no part. (4 pages)

Defendant appeals his convictions, arguing the court erred in instructing the jury an inoperable, unloaded gun is a dangerous weapon as a matter of law. OPINION HOLDS: Precedent establishes the State need not prove a handgun used during a robbery and burglary was loaded and in working order. We find no error.

No. 11-1052. [2-497] STATE v. ARMSTRONG

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

Defendant appeals her conviction for committing assaults on a nurse and doctor in a hospital emergency room. She claims her trial counsel was ineffective in failing to object to the jury instructions. OPINION HOLDS: There is not a reasonable probability the result of the trial would have been different had defendant's attorney succeeded in having the definition of health care provider included in the instructions. Defendant has failed to establish the prejudice element of her ineffective-assistance claim.

No. 11-1260. [2-501] STATE v. HARPER

Appeal from the Iowa District Court for Scott County, Mary E. Howes and Thomas G. Reidel, Judges. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Eisenhauer, C.J. (3 pages)

Defendant appeals his sentence. OPINION HOLDS: The district court considered the presentence investigation report and less restrictive forms of punishment before imposing sentence. We find no abuse of discretion.

No. 11-1700. [2-548] GUERRERO v. STATE

Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Potterfield and Mullins, JJ. Opinion by Eisenhauer, C.J. Tabor, J., takes no part. (2 pages)

Defendant appeals the summary dismissal of his second application for postconviction relief. Defendant sought relief based on Padilla v. Kentucky, ___, 130 S. Ct. 1473, 1486 (2010). OPINION HOLDS: Based on Perez v. State, ___ N.W.2d ___, 2012 WL 2052399, at *1 (Iowa 2012), we affirm.

No. 11-0084. [2-591] STATE v. SANCHEZ-PEREZ

Appeal from the Iowa District Court for Webster County, William C. Ostlund, Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Doyle and Tabor, JJ. Opinion by Eisenhauer, C.J. (3 pages)

Defendant appeals the court's denial of his motion to correct an illegal sentence seeking to preserve an ineffective-assistance-of-counsel claim. OPINION HOLDS: We affirm the district court's order and preserve defendant's ineffective-assistance-of-counsel claim for possible postconviction proceedings.

No. 12-0942. [2-617] IN RE L.C.H.

Appeal from the Iowa District Court for Polk County, Constance Cohen, Associate Juvenile Judge. AFFIRMED. Considered by Eisenhauer, C.J., and Doyle and Tabor, JJ. Opinion by Eisenhauer, C.J. (5 pages)

Mother appeals from the order terminating her parental rights. OPINION HOLDS: The mother has been incarcerated since the child's birth, and no significant attachment exists between the mother and the child. It is not in the best interests of the child to continue in a guardianship when her grandmother is willing to adopt her. Upon our de novo review, we affirm.

No. 11-1972. [2-311] FERNANDER v. WENNER

Appeal from the Iowa District Court for Marshall County, Kurt J. Stoebe, Judge. AFFIRMED. Considered by Tabor, P.J., Bower, J., and Huitink, S.J. Opinion by Huitink, S.J. (7 pages)

Brian Fernander and Tammy Wenner are the parents of two children, A.W., born in 1995, and B.W., born in 1997. The parents were never married. They separated in 1997, when A.W. was two years old and B.W. was three or four months old. In early 2005, when Brian began paying child support, he requested visitation with the children. Tammy took the children to a counselor because Brian had not had contact with the children since 1997. Brian and the children communicated by mail, e-mail, and text messages, but did not have face-to-face contact. On July 1, 2010, Brian filed a petition for joint legal custody of the children and requested the court to set forth a specific visitation schedule. The court granted Tammy sole legal custody. The court determined Brian could have visitation with the children, but did not set forth a specific visitation schedule. The court denied Brian's post-trial motion. Brian appeals. OPINION HOLDS: I. On our de novo review of the record, and after careful consideration of the factors in Iowa Code section 598.41(3) (2009), we conclude the district court properly granted Tammy sole legal custody. The children, who were ages sixteen and fourteen at the time of the hearing, had been in Tammy's care since they were born, with very little input from Brian. II. The court obviously left it to the parties to arrange a time either for Brian to come to Iowa for a visit, or for the counselor and Tammy to determine the children could go to Florida to visit Brian there. In either event, it is clear the court determined visitation would occur. We agree with the district court that the parties may work out a visitation schedule.

No. 12-0010. [2-519] STATE v. FINNEY

Appeal from the Iowa District Court for Pottawattamie County, Mark J. Eveloff, Judge. REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. Considered by Vaitheswaran, P.J., Danilson, J., and Huitink, S.J. Opinion by Huitink, S.J. (7 pages)

Craig Finney appeals his conviction and sentence, based on his guilty plea, to attempted murder. He claims he received ineffective assistance of counsel because defense counsel permitted him to plead guilty to attempted murder without establishing a factual basis to support the charge and because defense counsel failed to prepare an adequate defense for his case. OPINION HOLDS: The district court did not articulate that it was relying on the minutes of evidence or any other source to find a factual basis for the plea beyond Finney's statement in court that he shot Harker. Finney's statement, standing alone, is not sufficient to show he specifically intended to cause her death. We conclude Finney received ineffective assistance because defense counsel permitted him to plead guilty to attempted murder when there was not a sufficient factual basis in the record. Finney has not stated specifically how defense counsel was inadequate or how different or additional actions by defense counsel would have changed his decision to plead guilty. We conclude he has not shown he received ineffective assistance due to counsel's failure to prepare an adequate defense. We vacate the conviction and sentence and remand for further proceedings to allow the State to supplement the record to establish a factual basis for the charge of attempted murder under Iowa Code section 707.11 (2011).

No. 12-0062. [2-450] IN RE MARRIAGE OF GROTH

Appeal from the Iowa District Court for Ida County, Edward A. Jacobson, Judge. AFFIRMED AS MODIFIED. Considered by Doyle, P.J., Danilson, J., and Mahan, S.J. Opinion by Mahan, S.J. (10 pages)

Jerry and Heather Groth were married in 2007 and have one child, a son born in July 2008. The district court issued a dissolution decree for the parties on January 4, 2012, granting the parties joint legal custody of the child and joint physical care. Jerry appealed the physical care provision of the dissolution decree. OPINION HOLDS: I. On our de novo review, we disagree with the physical care decision of the district court. Much of the testimony at the hearing involved Jerry's allegations that Heather had a serious drinking problem. The evidence clearly showed Heather's alcohol usage has become problematic because it has led to interaction with law enforcement officials. After reviewing all of the evidence, we conclude the child should be placed in Jerry's physical care. Heather's lifestyle, which has involved excessive drinking, problematic friends, and run-ins with law enforcement, is not conducive to the child's best interests. In addition, she has serious credibility problems. We conclude Jerry can offer the child stability. We conclude physical care with Jerry would place the child in an environment more likely to promote a healthy physical, mental, and social maturity. II. We determine each party should pay his and her own attorney fees for this appeal. We modify the dissolution decree to place the child in Jerry's physical care. We remand to the district court for a determination of a proper visitation schedule for Heather and a new ruling on the issue of child support.

 

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Steve Lombardi
Iowa personal injury, workers' compensation, motorcycle, quadriplegic, paraplegic, brain injury, death