State of Iowa v. Luis Avalos

• Court: Court of Appeals of Iowa
• Decided: July 19, 2017
• Docket: 16-0767
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-0767 Filed July 19, 2017

STATE OF IOWA, Plaintiff-Appellee,

vs.

LUIS AVALOS, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Jason A. Burns,

District Associate Judge.

The defendant appeals from his conviction for operating while under the

influence. AFFIRMED.

Rockne Cole of Cole Law Firm, Iowa City, for appellant.

Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.

Considered by Danilson, C.J., and Potterfield and Bower, JJ. 2

POTTERFIELD, Judge.

Luis Avalos appeals from his conviction for operating while under the

influence. Avalos purportedly challenges the sufficiency of the evidence to

support his conviction, maintaining the State failed to introduce substantial

evidence he was under the influence of alcohol or intoxicated. However, Avalos

“candidly admits he did not raise a sufficiency challenge below.” 1 See Metz v.

Amoco Oil Co., 581 N.W.2d 597, 600 (Iowa 1998) (“Our preservation rule

requires that issues must be presented to and passed upon by the district court

before they can be raised and decided on appeal.”). And he does not raise his

claim under the ineffective-assistance-of counsel framework.2 See State v.

Fountain, 786 N.W.2d 260, 263 (Iowa 2010) (“Ineffective-assistance-of-counsel

claims are an exception to the traditional error-preservation rules.”). Thus,

Avalos has failed to raise a claim that is preserved for our review, and we affirm

without further opinion. See Iowa Ct. R. 21.26(1)(a), (e).

AFFIRMED.

1 Avalos “invites the State to waive objection on this ground.” The State has not accepted Avalos’s invitation. Moreover, even if it had, we would not be bound by such a concession. See State v. Bergmann, 633 N.W.2d 328, 332 (Iowa 2001) (“Although the State concedes that error has been preserved on every issue raised on appeal . . ., we disagree.”); Top of Iowa Co-op v. Sime Farms, Inc. 608 N.W.2d 454, 470 (Iowa 2000) (“In view of the range of interests protected by our error preservation rules, this court will consider on appeal whether error was preserved despite the opposing party’s omission in not raising the issue at trial or on appeal.”); State v. Young, No. 09-1938, 2011 WL 4579863, at *5 (Iowa Ct. App. Oct. 5, 2011) (raising the issue of error preservation sua sponte “in spite of the State’s acquiescence”). 2 Avalos states we may, if we choose, address his claim on prejudice grounds. However, he has provided no other argument or authority to support a claim for ineffective assistance. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in support of an issue deemed waiver of that issue.”). “Judges cannot assume the role of a partisan advocate and do counsel’s work.” State v. Coleman, 890 N.W.2d 284, 304 (Iowa 2017) (Waterman, J., dissenting) (citing Hyler v. Garner, 548 N.W.2d 864, 876 (Iowa 1996)). Thus, without determining whether the record is adequate for review of the issue on direct appeal, we decline to consider it.