author: STREIT, Justice.

text:
    Sharon MOHAMMED and Doris Whigham Curry, as Co-Administrators of the Estate of Jerry Whigham, Appellants, v. E. Anthony OTOADESE, M.D., Appellee.
    No. 05-1670.
    Supreme Court of Iowa.
    Sept. 14, 2007.

      D. Raymond Walton of Beecher Law Offices, Waterloo, for appellants.
    Jennifer E. Rinden, Connie Alt, and Sarah J. Gayer of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for appellee.
   STREIT, Justice.

Following a defense verdict in a medical malpractice case, the estate of Jerry Whig-ham sought a new trial claiming it was prejudiced by the erroneous admission of certain evidence. The court of appeals granted a new trial based on testimony concerning Whigham’s prior lawsuit against Hy-Vee for a slip-and-fall injury. Although the testimony should not have been admitted, we vacate the decision of the court of appeals because we find the evidence was not prejudicial to the estate. Moreover, we find neither evidence of payments by Medicare and Medicaid nor evidence of Whigham’s failure to follow his doctors’ recommendations prejudiced the estate. We vacate the decision of the court of appeals and affirm the district court’s denial of the estate’s motion for a new trial.

I. Facts and Prior Proceedings.

Jerry Whigham was referred to Dr. E. Anthony Otoadese for an enlarged thyroid. Dr. Otoadese is a cardiothoracic and vascular surgeon in Waterloo. Whigham’s thyroid had enlarged to the extent it was pressing on his trachea, right lung, and superior vena cava, a large vein. In February 2001, Dr. Otoadese performed surgery by opening Whigham’s chest and removing the enlarged thyroid. During this process, Whigham’s recurrent laryngeal nerves were injured.

After the surgery Whigham was unable to breathe normally. He was diagnosed with bilateral paralysis of his vocal cords. A tracheostomy tube was installed which allowed Whigham to breathe through the tube. In December 2002, Whigham removed the tube to clean it, and was unable to replace it. His sister attempted to help him, but she was also unable to get the tube back into his throat. Whigham suffered cardiac arrest and went into a coma.

In February 2003, Sharon Mohammed, who was Whigham’s niece and conservator, filed a medical malpractice action against Dr. Otoadese, claiming during the surgery in 2001 Dr. Otoadese negligently damaged Whigham’s recurrent laryngeal nerves. Whigham died while the suit was pending. Mohammed and Whigham’s sister, Doris Whigham Curry, as co-administrators of Whigham’s estate, were substituted as the plaintiffs in the action.

At trial, the fighting issue was whether Dr. Otoadese breached the standard of care by removing Whigham’s thyroid through his chest rather than through his neck. The estate presented the expert testimony of two doctors. Dr. Russell Smith, an ear, nose and throat specialist, testified an enlarged thyroid should be removed through the neck because there is a better chance of protecting the recurrent laryngeal nerves during surgery. Dr. Richard Waldorf, a retired general surgeon, testified Dr. Otoadese breached the applicable standard of care by failing to identify and protect the recurrent laryngeal nerves during surgery.

In his defense, Dr. Otoadese testified Whigham had a rare type of enlarged thyroid because it was very large and was about ninety-five percent in the chest area. He agreed most enlarged thyroids can be removed through the neck, but stated the specific circumstances of this case were such that Whigham’s enlarged thyroid had to be removed through the chest. He testified he did not look for the recurrent laryngeal nerves because Whigham was not in very good health, and he wanted to remove the enlarged thyroid as quickly as possible.

Additionally, three other doctors testified on behalf of Dr. Otoadese. Dr. Mar-nix Verhofste, a cardiothoracic surgeon, and Dr. Courtney Harris, a retired cardiovascular and thoracic surgeon, both testified Dr. Otoadese properly removed Whig-ham’s thyroid through the chest based on the thyroid’s unusually large size and location. Dr. Verhofste stated that during this type of surgery it is very difficult to find the recurrent laryngeal nerves. Dr. Louis Alt, an ear, nose and throat specialist, testified Dr. Otoadese acted in a reasonable manner.

The jury returned a verdict in favor of Dr. Otoadese. The estate filed a motion for new trial, contesting several evidentia-ry rulings. The district court denied the motion for new trial. The estate appealed arguing the trial court erred by: (1) permitting Dr. Otoadese to introduce evidence of Whigham’s lawsuit against Hy-Vee; (2) permitting the introduction of evidence that Whigham’s medical bills were paid by Medicare and Medicaid; (3) not permitting Dr. Smith to testify about a certain medical treatise; (4) prohibiting the estate from introducing evidence that Dr. Otoadese did not have privileges to perform thyroidecto-mies at Allen Hospital; (5) refusing to admonish the jury to disregard the display of emotion by Dr. Otoadese; (6) permitting Dr. Otoadese to introduce evidence of Whigham’s noncompliance with his doctors’ recommendations in the years before the surgery; and (7) refusing to grant a new trial based on the cumulative effect of the alleged errors.

The court of appeals granted the estate a new trial. It held the trial court abused its discretion by ruling the evidence of Whigham’s action against Hy-Vee was admissible. The court found the trial court did not err in allowing evidence of payments made on behalf of Whigham by Medicare and Medicaid. It made no decision regarding the treatise or Dr. Otoadese’s privileges. Finally, it held evidence of Whigham’s noncompliance may be admissible on retrial if it is determined to be relevant to the issue of proximate cause.

Both parties sought further review, which we granted. Dr. Otoadese argues the court of appeals should not have granted a new trial because the evidence concerning Whigham’s action against Hy-Vee was not prejudicial to the estate. The estate argues the court of appeals properly granted a new trial based on the admission of evidence of the Hy-Vee lawsuit but erred with respect to the evidence of payments by Medicare and Medicaid and Whigham’s noncompliance. The estate urges this court to affirm the court of appeals’ granting of a new trial but requests we prohibit on retrial the admission of evidence of Medicare and Medicaid payments and Whigham’s noncompliance. For the reasons that follow, we vacate the decision of the court of appeals and affirm the district court.

II. Scope of Review.

We review the district court’s determination of relevancy and admission of relevant evidence for an abuse of discretion. Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000); Waits v. United Fire & Cas. Co., 572 N.W.2d 565, 569 (Iowa 1997). An abuse of discretion exists when “the court exercised [its] discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable.” State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997) (citing State v. Vanover, 559 N.W.2d 618, 627 (Iowa 1997)).

III. Merits.

A. Prior Lawsuit Against Hy-Vee.

Before trial, the estate filed a motion in limine requesting an order prohibiting the defense from presenting any evidence regarding a lawsuit Whigham filed against Hy-Vee for a slip-and-fall injury that occurred at one of its grocery stores in 2000. In resisting the motion, defense counsel argued the Hy-Vee lawsuit was relevant to rebut the estate’s contention Whigham intended to file the present case against Dr. Otoadese but was not able to do so before slipping into a coma. Counsel stated

we think it is very relevant that [Whig-ham] found his way to a lawyer [after Dr. Otoadese removed his thyroid] and got a lawsuit on file, but it wasn’t this one. It was a case against Hy-Vee. And that’s what we want to offer it for.

Counsel for the estate responded: “this is an attempt to try to make it look like Mr. Whigham was [a] litigious person.... That’s the danger here, and this is really more prejudicial than probative.... ” The court ruled Dr. Otoadese could offer evidence of the Hy-Vee lawsuit.

On appeal, defense counsel now contends she was only trying to impeach Curry who testified about her brother and his life. Defense counsel attempted to show Curry did not know her brother as well as she claimed. After Curry acknowledged she did not know much about Whigham’s other medical conditions, defense counsel asked Curry about her knowledge of the Hy-Vee lawsuit:

Q. What did- [Whigham] tell you about falling in a store? A. He said he just tripped over a banana peeling or something. I think that’s what he said. He said no more to me about it. I don’t know anything else about it.
Q. Was that an incident involving that, you believe, occurred at the Hy-Vee store? A. I think so.
Q. And that would have been in 2000, February of 2000. Are you aware that he filed a lawsuit about that?.... A. I don’t know.
Q. He didn’t discuss whether or not he filed a lawsuit? , A. Right.
Q. So you don’t know anything about Jerry filing a lawsuit in February 2002 about a fall at the Hy-Vee store. A. I have the same answer. I do not know anything about it.
Q. And just so I’m clear, ma’am, in February of 2002 that was before Mr. Whigham had come to stay with you prior to his death; correct? A. I think so.

We find the trial court abused its discretion in allowing defense counsel to cross-examine Curry about the Hy-Vee lawsuit. Whigham’s lawsuit against Hy-Vee was not relevant because it did not “hav[e] any tendency to make the existence of any fact that is of consequence to the determination of the [present] action more probable or less probable_” Iowa R. Evid. 5.401 (defining relevant evidence). On appeal, Dr. Otoadese argues the subject was properly broached because the estate raised the subject of Whigham’s “affairs” on direct examination. See State v. Holmes, 325 N.W.2d 114, 117 (Iowa 1982) (“Cross-examination may deal with matters inquired into on direct, and questions fairly within the area of those matters constitute proper cross-examination.”)- But that is not exactly true. Curry was on the stand describing Whigham as a person and explaining how he suffered after the surgery. She never testified she knew about his “affairs” — legal, financial, or otherwise. It is a stretch for Dr. Otoadese to argue that simply because Curry testified about Whigham, his previous lawsuit concerning an injury completely unrelated to the present action is a proper subject on cross-examination. Curry’s lack of knowledge concerning the lawsuit had little impeachment value. Moreover, even if the Hy-Vee lawsuit was somehow relevant — which we doubt — the information should have been excluded under rule 5.403 (allowing relevant evidence to be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury”).

Nevertheless, the erroneous admission of evidence does not require reversal “unless a substantial right of the party is affected.” Iowa R. Evid. 5.103(a). In other words, the admission of evidence must be prejudicial to the interest of the complaining party. Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 183 (Iowa 2004). This requires a finding that it is “probable a different result would have been reached but for” the admission of the evidence or testimony. Mays v. C. Mac Chambers Co., 490 N.W.2d 800, 803 (Iowa 1992); accord State v. Rodriquez, 636 N.W.2d 234, 244 (Iowa 2001); see also Mercer v. Pittway Corp., 616 N.W.2d 602, 612 (Iowa 2000) (“ ‘Although a presumption of prejudice arises when the district court has received irrelevant evidence over a proper objection, the presumption is not sufficient if the record shows a lack of prejudice.’” (quoting McClure v. Walgreen Co., 613 N.W.2d 225, 235 (Iowa 2000))).

We find the estate suffered no such prejudice with Curry’s testimony concerning the Hy-Vee lawsuit under the unique facts of this case. Cf. Nepple v. Weifenbach, 274 N.W.2d 728, 734 (Iowa 1979) (granting a new trial due to the “sufficient likelihood of prejudice” to the plaintiff where the defense counsel questioned plaintiff on the amounts of past- settlements). The questioning was brief in the context of a seven day trial. Both parties offered credible expert testimony to support their respective positions. Based upon our review of the record, the focus of the trial appeared to be the expert testimony. Consequently, we cannot say the result would have probably been different had the testimony regarding the Hy-Vee lawsuit been excluded. See Mays, 490 N.W.2d at 804 (finding defense counsel’s questions concerning plaintiffs prior claims against other persons or companies were improper but not prejudicial). Thus, the court of appeals erred by granting a new trial on this ground.

We note, however, that it is the duty of trial courts, upon timely objection, to prevent the introduction of evidence regarding unrelated prior claims. Such evidence can be very distracting and improperly impugn the merits of the case being tried. See Nepple, 274 N.W.2d at 733 (noting “ ‘litigiousness, in the eyes of most people, reflects upon character’ and that ‘hostility is ordinarily felt against one who constantly requires services of a court of law -for the adjustment of life’s problems’ ” (quoting Lowenthal v. Mortimer, 125 Cal.App.2d 636, 270 P.2d 942, 945-46 (1954))). Our ruling in this case should not be read as tacit approval for introducing inadmissible evidence on a pinch-of-salt basis. Our standard for reversal may prove inadequate in the event the trial bar continues to be successful at introducing inadmissible evidence of prior unrelated claims. At this time, we rely upon trial judges to resist creative efforts to inject potentially prejudicial, irrelevant evidence into the record.

B. Disclosure of Payments Made by Medicare and Medicaid.

Before trial, both parties sought determinations on the admissibility of Whigham’s medical expenses. Whigham was charged almost $800,000 for the medical care he received concerning his thy-roidectomy and subsequent complications. His health care providers accepted $304,844 from Medicare, Iowa Medicaid, and Illinois Medicaid in satisfaction of the charges. The estate sought to introduce the amount billed as probative of the extent of Whigham’s injury. The estate also claimed it was entitled to request damages for the amount actually paid because Medicare and Medicaid would have to be reimbursed in the event of any recovery in this case. Finally, the estate argued the jury should not be told the bills were paid by Medicare and Medicaid.

Dr. Otoadese sought to exclude all evidence of medical expenses arguing Iowa Code section 147.136 (2003) barred recovery of such expenses.

The district court held the estate could claim damages for the amount it would have to repay Medicare and Medicaid. The court also ruled the jury could be told the bills had been paid by Medicare and Medicaid.

On appeal, we are asked to determine whether the trial court abused its discretion in allowing Dr. Otoadese to present evidence the bills were paid by Medicare and Medicaid. The estate contends the trial court’s ruling “had the effect of introducing the issue of insurance into [the] trial.” It argues “the jury ... could conclude that there should not be any verdict in [the estatej’s favor for the reason that [Whigham’s] medical expenses had been covered by insurance.”

The estate claims admitting evidence of a plaintiffs medical insurance coverage is just as improper as admitting evidence of a defendant’s liability insurance coverage. However, assuming Medicare and Medicaid are analogous to insurance, this contention is not supported by Iowa law. Iowa Rule of Evidence 5.411 states “[evidence that a person was or was not insured against liability is not admissible upon the issue of whether the person acted negligently or otherwise wrongfully.” There is no similar rule regarding medical insurance. In fact, Iowa Code section 668.14 expressly permits the admission of evidence concerning a plaintiffs medical insurance (but not a state or federal program) in personal injury cases. Moreover, the reasons for excluding evidence of the existence of liability insurance — knowledge of a defendant’s liability insurance may “influence jurors to bring in a verdict against a defendant on insufficient evidence [and may] cause[ ] jurors to bring in a larger verdict than they would if they believed the defendant would be required to pay it,” Laguna v. Prouty, 300 N.W.2d 98, 101 (Iowa 1981) — are not applicable to medical insurance coverage. See Iowa Code § 668.14(2) (requiring a court to permit evidence and argument as to the plaintiffs costs for procuring medical insurance and any rights of indemnification or subro-gation by the insurance company). Had the jury found Dr. Otoadese was negligent, we doubt it would have returned a verdict in the doctor’s favor simply because government programs paid for Whigham’s medical expenses. Moreover, the jury was informed Medicare and Medicaid were entitled to reimbursement out of any recovery in the event the jury determined the estate was entitled to damages. We cannot say the district court ruling prejudiced the estate. Therefore, the district court properly denied the estate’s motion for a new trial on this ground.

C. Whigham’s Noncompliance.

On direct examination, defense counsel questioned Dr. Verhofste concerning Whigham’s alleged noncompliance with his doctors’ recommendations in the years prior to the surgery. The estate alleges the trial court erred in allowing this line of questioning because it was “irrelevant” and “more prejudicial than probative.” See Iowa Rs. Evid. 5.401; 5.408. At trial, the estate argued evidence of Whigham’s noncompliance could “cause this jury to look at whether Mr. Whigham was at fault.” As a result, it contends it is entitled to a new trial.

Dr. Verhofste testified he reviewed Whigham’s medical records and found “he was very, very noncompliant.” Defense counsel asked the doctor what noncompliance means. Dr. Verhofste said “compliance means when the doc tells you take these medicines, you take them.” Specifically, Dr. Verhofste testified Whigham “was asked to deal with [his enlarged thyroid], surgery or medicine, and he refused.” The doctor also said Whigham refused to release his records from the Mayo Clinic to Dr. Otoadese. Dr. Ver-hofste then explained:

[I]f the patient doesn’t want any information to come from a previous hospitalization, that could create a problem. And you just have to rely on what the patient says. So you know, I think overall for a physician it’s a difficult situation to deal with somebody who doesn’t share in that information. And finally the one who pays the price for it is the patient himself, I think.

The alleged noncompliance Dr. Ver-hofste commented upon occurred prior to the surgery Dr. Otoadese performed on Whigham. Thus, Whigham’s noncompliance may not be considered in terms of comparative fault. See DeMoss v. Hamilton, 644 N.W.2d 302, 306 (Iowa 2002) (stating “in a medical malpractice action, the defense of contributory negligence is inapplicable when a patient’s conduct provides the occasion for medical attention, care, or treatment which later is the subject of a medical malpractice claim or when the patient’s conduct contributes to an illness or condition for which the patient seeks the medical attention, care, or treatment on which a subsequent medical malpractice claim is based”). However, Dr. Otoadese never pled comparative fault. Instead, he sought to admit the evidence to explain why Whigham’s thyroid was so large and all of the circumstances concerning Whig-ham’s medical care. In addition, Dr. Otoadese wanted the jury to know he did not have the benefit of reviewing all of Whigham’s medical records because Whig-ham refused to release them.

We find the evidence relevant to Dr. Otoadese’s decision to remove Whigham’s thyroid through his chest rather than through his neck. Moreover, we find the evidence was not “more prejudicial than probative” as the estate contends. Dr. Otoadese is entitled to explain the circumstances he considered in making his decision. Evidence of Whigham’s noncompliance and its role in treatment was well documented in the medical records admitted into evidence. Moreover, the estate minimized Dr. Verhofste’s testimony on cross-examination. Dr. Verhofste conceded obtaining Whigham’s prior thyroid scans would not have “really matter[ed]” to Dr. Otoadese’s treatment of Whigham because a current scan is more important in determining the appropriate care. Thus, we find the trial court properly allowed evidence of Whigham’s noncompliance. The estate is not entitled to a new trial on this ground.

IV. Conclusion.

We find the estate was not prejudiced by either the erroneous admission of testimony concerning Whigham’s prior lawsuit against Hy-Vee, or the disclosure that Medicare and Medicaid paid Whigham’s medical expenses. Moreover, the district court did not err by allowing evidence of Whigham’s noncompliance. It was error to order a new trial.

DECISION OF THE COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

      . We will hereafter refer to Iowa Medicaid and Illinois Medicaid as simply "Medicaid.”

      . Under Iowa Code section 147.136, a plaintiff in a medical malpractice case may not be awarded damages for
      the cost of reasonable and necessary medical care, rehabilitation services, and custodial care, ... to the extent that those losses are replaced or are indemnified by insurance, or by governmental ... benefit programs or from any other source except the assets of the claimant or of the members of the claimant’s immediate family.

      . Because a new trial is not warranted in this case, we need not determine whether the trial court correctly interpreted Iowa Code section 147.136.

      . On appeal, the estate asserts a new reason to exclude evidence of Medicaid. It contends "an injured party can suffer even greater prejudice by the perception that he is on the 'public dole.’ ” Because the estate failed to preserve this issue for appeal, we do not address it.

      . Iowa Code section 668.14(4) states “[tjhis section does not apply to actions governed by section 147.136.” Since we need not determine whether section 147.136 is applicable to the present case, we offer no opinion as to the applicability of section 668.14. Instead, we simply offer section 668.14 as an illustration of the legislature’s decision to permit the admission of evidence of medical insurance in personal injury cases.


source: Caselaw Access Project

author: HECHT, Justice.

license: Public Domain

text:
    EAST BUCHANAN TELEPHONE COOPERATIVE, an Iowa Cooperative, Appellant, v. IOWA UTILITIES BOARD, a Division of the Iowa Department of Commerce, and U.S. Cellular Corporation, Qwest Corporation, and Office of Consumer Advocate, Appellees.
    No. 05-1212.
    Supreme Court of Iowa.
    Sept. 14, 2007.

      Thomas G. Fisher, Jr., of Parrish, Krui-denier, Dunn, Boles, Gribble, Cook, Parrish, Gentry & Fisher, L.L.P., Des Moines, for appellant.
    David J. Lynch and Penny G. Baker, Des Moines, for appellee Iowa Utilities Board.
    Bret A. Dublinske of Dickinson, Macka-man, Tyler & Hagen, P.C., Des Moines, for appellee U.S. Cellular Corporation.
    David S. Sather and Timothy J. Goodwin, Des Moines, for appellee Qwest Corporation.
   HECHT, Justice.

The Iowa Utilities Board issued orders temporarily and permanently enjoining East Buchanan Telephone Cooperative (EBTC) from blocking the delivery of telephone calls originated by customers of wireless telecommunications carriers and transmitted to EBTC by Qwest Corporation. EBTC sought judicial review, contending the board has no authority to issue temporary or permanent injunctions; and asserting in the alternative, if the board has such authority, the evidence does not support injunctive relief against EBTC in this case. EBTC appeals from the district court’s ruling affirming the board’s decision.

I. Background Facts and Proceedings.

EBTC provides phone, cable television, and internet services to four small communities in Buchanan County: Winthrop, Quasqueton, Aurora, and Stanley. EBTC generates part of its income by charging “access charges” to other telecommunications carriers, including Qwest, whose customers place calls to EBTC’s members.

Qwest is one of several regional Bell operating companies referred to as “Baby Bells.” Qwest earns part of its revenue from fees charged for transmitting wireless calls placed by the customers of other wireless carriers such as U.S. Cellular to the customers of local exchange carriers such as EBTC. Prior to 1999, EBTC billed and Qwest paid access charges for all wireless traffic transmitted by Qwest to EBTC without regard either to the identity of the originating carrier or whether the traffic originated from within or outside EBTC’s local exchange area.

Qwest notified EBTC in 1999 that Qwest would no longer pay access charges for wireless calls originated by customers of other wireless carriers and transited by Qwest to EBTC, claiming it had no legal obligation to do so. EBTC continued, however, to bill Qwest for such traffic.

On July 12, 2004, EBTC, dissatisfied with its continuing uncompensated delivery of wireless transit traffic originated by other carriers and transmitted to it by Qwest, sent two letters intended to force a resolution of the commercial dispute. One of the letters was sent to Qwest demanding that it stop transmitting telephone traffic to EBTC, except those calls for which Qwest was willing to pay access charges; and notifying Qwest that EBTC would begin blocking the delivery of all other calls transmitted by Qwest for delivery to EBTC’s customers on August 16, 2004. The other letter sent by EBTC notified U.S. Cellular of EBTC’s demand to Qwest and EBTC’s intent to block traffic in the event Qwest failed to meet the demand for payment of EBTC’s access charges.

Qwest and U.S. Cellular filed complaints with the Iowa Utilities Board on August 13, 2004, requesting “emergency injunctive relief’ against EBTC. The complainants asserted a prior decision of the board established that EBTC had no legal right to block the wireless traffic transmitted to it by Qwest for other carriers. The board found EBTC’s threat to block calls to its customers constituted an immediate danger to public safety because wireless callers would be unable to reach “family, friends, police, or a doctor in EBTC’s exchange in an emergency.” On August 13, 2004, the board issued what it characterized as a “temporary injunction” forbidding EBTC from blocking calls transmitted by Qwest. The board also docketed the matter for investigation, consolidated the complaints filed by Qwest and U.S. Cellular, and scheduled a hearing on the question whether it was lawful for EBTC to block all telephone traffic received from Qwest except calls properly identified as Qwest toll traffic.

After a hearing, the board concluded EBTC’s plan to block calls would (1) discontinue or impair service to a community or part of a community in violation of Iowa Code section 476.20(1) (2003), and (2) disadvantage customers who had chosen to receive services from another telecommunications carrier in violation of section 476.101(9). On December 23, 2004, the board issued what it characterized as an “Order Granting Injunctive Relief'’ permanently “enjoining” EBTC from blocking transit traffic, without board approval, transmitted by Qwest.

EBTC filed a petition for judicial review urging the district court to dissolve the permanent injunction on the ground the board lacked authority to grant injunctive relief under chapter 17A. The district court concluded the board has authority to issue temporary injunctive relief in emergency adjudicative proceedings to avert an immediate danger to the public health, safety, or welfare under section 17A.18A(1), and that substantial evidence supported the board’s determination that such a danger would be created if EBTC’s plan to block wireless traffic were not enjoined. The district court further concluded the board’s order of December 23, 2004 “permanently enjoin[ing]” EBTC from blocking the traffic at issue was within the board’s broad powers under chapter 476 because it merely directed EBTC to follow the law.

EBTC asserts on appeal to this court that the board has no authority to issue temporary or permanent injunctions. EBTC claims in the alternative that even if the board has authority to grant temporary injunctive relief in emergency adjudicative proceedings under section 17A. 18A(1), there is no factual basis for a grant of such relief in this case because the complainants failed to establish (1) the existence of an immediate danger to the public health, safety, or welfare arising from EBTC’s plan to block calls; and (2) equitable grounds for injunctive relief (an invasion or threatened invasion of a right, substantial injury or damages will result if an injunction is not granted, and no adequate legal remedy is available).

II. Scope and Standards of Review.

Our review in this case is governed by section 17A.19 of the Iowa Administrative Procedure Act (IAPA). AT&T Commc’ns of the Midwest, Inc. v. Iowa Utils. Bd., 687 N.W.2d 554, 557 (Iowa 2004). “We review the district court’s decision by applying the standards of the [IAPA] to the agency action to determine if our conclusions are the same as those reached by the district court.” Univ. of Iowa Hosp. & Clinics v. Waters, 674 N.W.2d 92, 95 (Iowa 2004). We must “ ‘reverse, modify, or grant other appropriate relief if we conclude a person’s substantial rights have been prejudiced because of the agency action,” and the agency action is a type listed in Iowa Code section 17A.19Q0). AT&T, 687 N.W.2d at 557 (quoting Iowa Code § 17A.19(10)).

III. Discussion.

A. Temporary Injunction. We only decide cases involving an actual, justiciable controversy; we do not resolve moot issues. In re T.S., 705 N.W.2d 498, 501 (Iowa 2005). We have held that because “a temporary injunction generally merges into [a] permanent injunction,” issues pertaining to a temporary injunction become moot upon the issuance of a permanent injunction. Matlock v. Weets, 531 N.W.2d 118, 121-22 (Iowa 1995) (citing Foods, Inc. v. Leffler, 240 N.W.2d 914, 919 (Iowa 1976)); see also St. Joseph Hosp. v. Peterson, 196 N.W.2d 418, 419 (Iowa 1972). This general rule applies in this case, and consequently the questions of whether the board had authority under Iowa Code section 17A. 18A(1) to issue the temporary order, and whether grounds for the temporary order were established under the circumstances of this case, were rendered moot upon the board’s issuance of the permanent order.

B. Permanent Injunction. In its order granting injunctive relief, the board “permanently enjoined” EBTC from blocking the traffic at issue without prior approval of the board. EBTC bears on judicial review the burden of proving the invalidity of the board’s action and resulting prejudice. Iowa Code § 17A. 19(8)(<⅞).

An injunction is a judicial remedy enforceable through a court’s authority to find a party in contempt. Iowa R. Civ. P. 1.1501-1.1511. The legislature has authorized the board to request the district court to issue injunctions to stop perceived violations of chapter 476. Iowa Code § 476.14. But the board, an administrative agency within the Executive Branch of state government, has no authority to grant judicial remedies. See Iowa Const, art. Ill, § 1 (dividing the powers of government into three departments and generally providing that a person exercising powers of one department shall not exercise powers of the other departments); id. art. V, § 1 (vesting the judicial power in courts).

Our disposition of this case is not controlled, however, by our determination that the board lacks judicial power to issue injunctions. EBTC is entitled to relief on judicial review under Iowa Code chapter 17A only if it has met its burden to prove the invalidity of agency action and resulting prejudice. Iowa Code § 17A.19(8)(h). As the party seeking relief from the board’s action, EBTC must prove its substantial rights were prejudiced by the board’s action. Id. § 17A.19(10) (authorizing a court to grant judicial relief from agency action if the substantial rights of the person seeking relief have been prejudiced). We must therefore determine whether EBTC has established the invalidity of the order of December 23, 2004, and resulting prejudice as a consequence of the board’s characterization of the order as one “granting injunctive relief’ permanently “enjoining” EBTC from blocking traffic.

The legislature has delegated to the board broad authority to regulate utilities. Id. § 476.2(1) (conferring “broad general powers to effect the purposes of [chapter 476]”). Among the board’s express powers relevant to this case is the authority to grant or withhold permission for certain utility actions. See, e.g., id. § 476.20(1) (prohibiting discontinuation of utility service without permission of the board except in cases of emergency, nonpayment of account, or violation of rules and regulations) ; see also id. § 476.3(1) (delegating to the board the express authority to determine the legality of a proposed discontinuance of service and, upon a determination of illegality, to determine what would constitute “just, reasonable, and nondiscriminatory” service, “to be observed and enforced”); id. § 476.101(9) (authorizing the board to determine whether a utility’s action “disadvantages a customer who has chosen to receive services from another telecommunications carrier”).

In addition to these examples of broad authority expressly conferred upon it by statute, the board exercises authority “necessarily inferred from the power expressly granted.” Iowa Power & Light Co. v. Iowa State Commerce Comm’n, 410 N.W.2d 236, 240 (Iowa 1987). The authority of the board to make expressly delegated determinations affecting utilities and the public would be illusory if the board lacked the corresponding power to issue orders implementing them. Indeed, the authority to issue orders is clearly implicit in the legislature’s delegation to the board of authority to levy and collect civil penalties for violation of orders lawfully issued by the board, Iowa Code § 476.51, and the authority to seek a judicial remedy against utilities who violate a board order, id. § 476.14. We therefore conclude that within the broad “general powers” and implied authority of the board under section 476.2(1) is the authority to permanently order EBTC not to block traffic in violation of chapter 476. Accordingly, EBTC has failed to meet its burden to establish the invalidity of the order.

We conclude EBTC has also failed to establish its substantial rights were prejudiced by the board’s characterization of its order as a grant of permanent “in-junctive relief.” The board’s use of judicial vernacular really added nothing to the order that would constitute cognizable prejudice under section 17A.19(1). If EBTC should fail to comply with the order, the board is without judicial power to punish noncompliance with contempt. Such punishment could be sought by the board in a judicial proceeding commenced as authorized in section 476.14, but it could be imposed only by a court according to a well-established legal standard that has no regard for whether the allegedly violated order purports to grant injunctive relief— a judicial remedy beyond the power of the board. If EBTC blocks traffic in contravention of the order, the board could of course impose a civil penalty under section 476.51, but that sanction would be available to the board whether or not it has characterized the order as a grant of permanent “injunctive relief.” Thus, under the circumstances of this case, we conclude EBTC has failed to establish such prejudice as would permit the court to grant on judicial review the requested relief from the board’s action.

IV. Conclusion.

We find moot the question of whether the board had authority to issue the temporary order purporting to grant injunc-tive relief under the circumstances of this case. The board has authority to order EBTC to permanently refrain from blocking the disputed traffic delivered to it by Qwest. EBTC has failed to establish the invalidity of the “Order Granting Injunc-tive Relief,” and has not shown such prejudice as would entitle it to relief on judicial review. Accordingly, we affirm.

AFFIRMED.

All justices concur except APPEL, J., who takes no part.

      . Access charges are fees charged by local exchange carriers for the use of their infrastructure in the delivery of calls originated by customers of other carriers. Iowa Network Servs., Inc. v. Qwest Corp., 363 F.3d 683, 686 (8th Cir.2004).

      . See http://www.bell.com/rbocs.htm.

      . See Proposed Decision & Order, In re Exch. Of Transit Traffic, SPU-00-7 (Iowa Utils.Bd. Nov. 26, 2001), affd, Order Affirming Proposed Decision & Order (Iowa Utils.Bd. Mar. 18, 2002) (concluding that a transiting carrier is not obligated to pay access charges on “intraMTA traffic” — wireless originated or terminated traffic within a federally-defined major trading area).

      . The board made this finding notwithstanding EBTC’s claim that it would not block 911 calls.

      . Qwest at all times conceded it owed, and it in fact paid to EBTC, access charges on the toll traffic originated by Qwest's own customers.

      .The board’s order noted that although EBTC could not legally block the disputed traffic under the circumstances of this case, a local exchange carrier is entitled to compensation for the delivery of wireless traffic originated by wireless carriers such as U.S. Cellular. The board recommended remedial options for EBTC including a negotiated interconnection agreement with wireless carriers or a request for arbitration.

      . Qwest, U.S. Cellular, and the Office of Consumer Advocate intervened in the judicial review proceeding.

      . EBTC does not challenge on appeal the merits of the board's determinations that (1) Qwest does not owe access charges to EBTC on the disputed traffic, and (2) EBTC has no legal right to block the traffic.

      . We conclude below that the board, an administrative agency, does not have authority to grant a permanent injunction (a remedy granted only by courts). We also conclude, however, that the board does have authority (except in circumstances not claimed here) to issue orders directing a utility to refrain from discontinuing service without the board’s permission or taking action that disadvantages a customer who has chosen to receive services from another carrier. In this case the board first issued a temporary order directing EBTC to refrain from blocking traffic; and later, after a contested case hearing, the board issued an order directing EBTC to permanently refrain from such conduct. For the same reasons that a challenge to a temporary injunction issued by a court is moot after the issuance of a permanent injunction, EBTC’s challenge to the board’s temporary order became moot under the circumstances of this case when, after a hearing on the merits, the board entered a permanent order.

      . EBTC does not contend on judicial review that the board's order is invalid because the plan to block traffic was justified by an emergency, a carrier’s nonpayment of an account, or violation of rules and regulations. Neither does EBTC contend it obtained the board’s permission to block the traffic in question, nor that such permission was improperly denied when requested. As noted above, EBTC limits its argument on appeal to the proposition that the board lacks' authority to grant injunctions; and, in the alternative, even if the board has authority to grant injunctions, grounds for such relief were not established in this case.

      . When the board deems such civil penalties inadequate to stop a utility's violation of chapter 476 or a board order, it may commence suit in the district court to seek an injunction or other judicial remedy calculated to prevent the violation. Iowa Code § 476.14.


author: ZIMMER, P.J.

text:
    STATE of Iowa, Plaintiff-Appellee, v. John Michael BOLSINGER, Defendant-Appellant.
    No. 06-0659.
    Court of Appeals of Iowa.
    Feb. 28, 2007.

      Patricia Reynolds, Acting State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, William E. Davis, County Attorney, and Julie Walton, Assistant County Attorney, for appellee.
    Considered by ZIMMER, P.J., and MILLER and BAKER, JJ.
   ZIMMER, P.J.

John Bolsinger appeals following resen-tencing for his convictions on three counts of sexual exploitation by a counselor or therapist in violation of Iowa Code section 709.15(2) (2001) and three counts of sexual misconduct with a juvenile in violation of section 709.16(2). Bolsinger asserts the district court erred in restructuring his sentence for the purpose of elongating his term of incarceration. We affirm the district court.

Bolsinger was originally convicted of three counts of sexual abuse in the third degree in violation of section 709.4(1), as well as the three counts of sexual exploitation and the three counts of sexual misconduct noted above. He was sentenced to indeterminate terms of incarceration on each of the nine counts: ten years each on Counts I through III, the sexual abuse offenses; five years each on Counts IV through VI, the sexual exploitation offenses; and two years each on Counts VII through IX, the sexual misconduct offenses. The sentences were structured in such a way that Bolsinger received a total term of incarceration not to exceed thirty-seven years.

Bolsinger appealed. The supreme court reversed Bolsinger’s sexual abuse convictions and remanded for resentencing on the sexual exploitation and sexual misconduct convictions only. State v. Bolsinger, 709 N.W.2d 560, 566 (Iowa 2006). Upon resentencing, the district court again imposed indeterminate five-year terms of incarceration on each of the three sexual exploitation convictions and indeterminate two-year terms of incarceration on each of the three sexual misconduct convictions. The sentences were structured in such a way that Bolsinger received a total term of incarceration not to exceed twenty-one years. Under the original sentencing order, Bolsinger’s sentences for these six convictions were structured in such a way that he received a total term of incarceration not to exceed seventeen years. The four-year difference was due to the fact the district court had originally ordered two of the sentences for sexual misconduct to be served concurrently with other counts, but upon resentencing ordered that the sentences for all six convictions were to run consecutively.

Bolsinger appeals, asserting the harsher sentence is unconstitutional and void under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and its progeny. Although we review the district court’s sentencing decision for the correction of errors at law, State v. Freeman, 705 N.W.2d 286, 287 (Iowa 2005), to the extent Bolsinger presents constitutional issues our review is de novo, State v. Mitchell, 670 N.W.2d 416, 418 (Iowa 2003). Upon such review, we conclude Bolsinger’s sentences are constitutionally valid.

Under Pearce, it is a “flagrant violation of the Fourteenth Amendment” for a state trial court to impose heavier sentences upon a reconvicted defendant as a punishment for having successfully attacked his original conviction on appeal. Pearce, 395 U.S. at 723-24, 89 S.Ct. at 2080, 23 L.Ed.2d at 668-69. Accordingly, a more severe sentence after retrial is allowed only if the record contains reasons for the harsher sentence based on “objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.” Id. at 726, 89 S.Ct. at 2081, 23 L.Ed.2d at 670. This rule has since been read to “[apply] a presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence.” Wasman v. United States, 468 U.S. 559, 565, 104 S.Ct. 3217, 3221, 82 L.Ed.2d 424, 430 (1984).

Pearce’s holding has been limited by subsequent cases, however, which have found due process is not violated when the harsher sentence following a second trial was imposed by a different judge or jury, or where the same judge imposed a harsher sentence following trial than had been imposed following a now overturned guilty plea. As summarized by our supreme court,

“[W]hen a different judge sentences a defendant after a retrial, and that judge articulates logical, nonvindictive reasons for the sentence, there simply is no sound basis to presume that the sentence is the product of judicial vindictiveness.” However, this does not mean that the examination of an increased sentence is toothless, for if a defendant is able to show actual vindictiveness on the part of the second judge, he or she may still prevail on a claim of judicial vindictiveness.

Mitchell, 670 N.W.2d at 424 (citations omitted).

Bolsinger points to the foregoing law and asserts that, because his sentences upon remand were imposed by the same judge who imposed his original sentences, and because the second proceeding did not involve any new fact findings, he is entitled to a presumption of vindictiveness. Although this matter involves resentencing on the remaining counts following reversal of some of the defendant’s convictions, rather than sentencing following a second proceeding on the merits, we agree with those federal courts that have found Pearce applicable under the present circumstances. See, e.g., U.S. v. Campbell, 106 F.3d 64, 67 (5th Cir.1997). However, we cannot agree that, under the facts of this case, Bolsinger is entitled to a presumption of vindictiveness.

It is clear that imposition of a harsher sentence upon resentencing is the key to a Pearce vindictiveness claim. See Pearce, 395 U.S. at 723-24, 89 S.Ct. at 2080, 23 L.Ed.2d at 668-69. In considering whether a harsher sentence has been imposed under the circumstances present here, the majority of federal circuits follow what is known as the “aggregate package” approach. Campbell, 106 F.3d at 68. “Under this approach, courts compare the total original sentence to the total sentence after resentencing. If the new sentence is greater than the original sentence, the new sentence is considered more severe.” Id. At least two circuits, however, have adopted the “remainder aggregate” or “count-by-count” approach. Under this approach, which appears to be the same approach advocated by Bolsinger,

appellate courts compare the district court’s aggregate sentence on the non-reversed counts after appeal with the original sentence imposed on those same counts before appeal. If the new sentence on the remaining counts exceeds the original sentence on those counts, the Pearce presumption attaches.

Id.

We have reviewed the reasoning behind both approaches. We conclude when, as here, the reversed convictions are related to the convictions subject to resentencing, the reasoning underlying the aggregate package approach is the more persuasive. Simply stated, this approach

best reflects the realities faced by district court judges who sentence a defendant on related counts of an indictment. Sentencing is a fact-sensitive exercise that requires district court judges to consider a wide array of factors when putting together a “sentencing package.” When an appellate court subsequently reverses a conviction (or convictions) that was part of the original sentence, the district court’s job on remand is to reconsider the entirety of the (now-changed) circumstances and fashion a sentence that fits the crime and the criminal. The aggregate approach’s inherent flexibility best comports with this important goal.

Id.

Employing the aggregate package approach leads us to conclude Bolsinger did not receive a harsher sentence upon remand. Following his original trial and convictions, Bolsinger was sentenced to a total term of incarceration not to exceed thirty-seven years. Upon remand, he was sentenced to a total term of incarceration not to exceed twenty-one years, sixteen years less than his original total sentence.

Because a harsher sentence was not imposed upon remand, the Pearce vindictiveness presumption does not apply. In addition, although not expressly addressed by Bolsinger, we note the district court provided adequate reasons for the sentences imposed and the record does not indicate any actual vindictiveness on the part of the district Court. See Mitchell, 670 N.W.2d at 425 (“Although we reserve the right to check the sentencing power of our district courts, we refuse to undermine that power in a case of this type absent the presentation of evidence that actual vindictiveness has already done so.”). We accordingly affirm the district court’s sentencing decision.

AFFIRMED.

      . Count II was to run consecutively to Count I, and Count III was to run concurrently with Count II. Count IV was to run consecutively to Count II, Count V was to run consecutively to Count IV, and Count VI was to run consecutively to Count V. Count VII was to run consecutively to Count VI, Count VIII was to run concurrently with Count VI, and Count IX was to run concurrently with Count VII.

      . Overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).

      . Alabama, 490 U.S. at 795, 109 S.Ct. at 2203, 104 L.Ed.2d at 870 (trial following plea); Texas v. McCullough, 475 U.S. 134, 140, 143, 106 S.Ct. 976, 980-81, 89 L.Ed.2d 104, 112-14 (1986) (retrial before judge, first trial before jury); Chaffin v. Stynchcombe, 412 U.S. 17, 27-28, 93 S.Ct. 1977, 1982-83, 36 L.Ed.2d 714, 724 (1973) (retrial before new jury); Cohen v. Kentucky, 407 U.S. 104, 116, 92 S.Ct. 1953, 1960, 32 L.Ed.2d 584, 593-94 (1972) (de novo trial on review by higher court).


author: VAITHESWARAN, J.

text:
    ANNETT HOLDINGS, INC., Petitioner-Appellant, v. Steve ALLEN, Respondent-Appellee.
    No. 06-1009.
    Court of Appeals of Iowa.
    June 13, 2007.
    Charles A. Blades of Scheldrup Law Firm, P.C., Cedar Rapids, for appellant.
    Elizabeth Flansburg of Lawyer, Dough-erty, Palmer <& Flansburg, P.L.C., West Des Moines, for appellee.
    Heard by HUITINK, P.J., and ZIMMER and VAITHESWARAN, JJ.
   VAITHESWARAN, J.

In this appeal from a workers’ compensation decision, we must preliminarily decide whether the commissioner erred in concluding he had subject matter jurisdiction to consider the claim. If the commissioner was correct on this jurisdictional issue, we must decide whether his award of benefits is supported by substantial evidence.

I. Background Facts and Proceedings

Annett Holdings, Inc. is an Iowa company. Annett Holdings hired Illinois resident Steve Allen to work for the company as a truck driver. Allen’s contract of hire stated that any injury Allen sustained in the course of his employment would “be governed exclusively by and construed in accordance with the laws of the State of Iowa, including the Iowa Workers’ Compensation Act.”

In 2002, Allen filed a petition for workers’ compensation benefits in Iowa for an injury that occurred in Missouri. He alleged he sustained injuries to his back and left leg while trying to secure a load of roofing material. An arbitration decision was issued in Allen’s favor. Annett Holdings appealed that decision. While the appeal was pending, Annett Holdings moved to dismiss the petition for lack of subject matter jurisdiction under Iowa Code section 85.71 (2001). That provision governs the commissioner’s jurisdiction over claims for injuries sustained outside the state. After receiving the motion, the commissioner remanded the case to resolve the jurisdictional issue. On remand, the deputy commissioner concluded subject matter jurisdiction was lacking. The deputy dismissed the petition.

Allen filed an administrative appeal. His appeal was consolidated with Annett Holdings’s earlier appeal from the original arbitration decision. In a final decision, the workers’ compensation commissioner concluded subject matter jurisdiction attached under Iowa Code section 85.71. Proceeding to the merits, the commissioner affirmed the arbitration decision in favor of Allen.

On judicial review, the district court affirmed the commissioner. Annett Holdings appeals.

II. Standards of Review

The Iowa Supreme Court has stated we must review the commissioner’s interpretation of Iowa Code section 85.71 under the “erroneous” standard of Iowa Code section 17A.19(10)(c). Mycogen Seeds v. Sands, 686 N.W.2d 457, 464 (Iowa 2004) (holding interpretation of workers’ compensation statutes not clearly vested by a provision of law in the discretion of the agency, triggering review under Iowa Code section 17A.19(10)(c)). Review of the commissioner’s application of law to fact is under the “irrational, illogical or wholly unjustified” standard of Iowa Code section 17A.19(10)(m). Id. 465. Finally, we review the commissioner’s fact findings to determine if they are supported by substantial evidence. Iowa Code § 17A.19(10)(f); Mycogen Seeds, 686 N.W.2d at 464. We apply these standards to the final agency decision to determine if our conclusions are the same as the conclusions reached by the district court. Greenwood Manor v. Iowa Dep’t of Pub. Health, 641 N.W.2d 823, 830 (Iowa 2002).

III. Subject Matter Jurisdiction

Iowa Code section 85.71 states:

If an employee, while working outside the territorial limits of this state, suffers an injury on account of which the employee ... would have been entitled to the benefits provided by this chapter had such injury occurred within this state, such employee ... shall be entitled to the benefits provided by this chapter, if at the time of such injury any of the following is applicable:
1. The employment is principally localized in this state, that is the employee’s employer has a place of business in this state or some other state and the employee regularly works in this state, or if the employee’s employer has a place of business in this state and the employee is domiciled in this state.
2. The employee is working under a contract of hire made in this state in employment not principally localized in any state and the employee spends a substantial part of the employee’s working time working for the employer in this state.

Iowa Code § 85.71. The provision has been interpreted as a subject matter jurisdiction statute. Heartland Express v. Gardner, 675 N.W.2d 259, 263 n. 3 (Iowa 2003).

Iowa Code section 85.71(1) confers jurisdiction over a claim if “[t]he employment is principally localized in this state.” This requirement may be satisfied in one of two ways. First, the employment will be considered “principally localized” in Iowa if the employer has a place of business in this or some other state and the employee “regularly works” in this state. Second, the employment will be considered “principally localized” in this state if the employer has a place of business in this state and the employee is domiciled in this state.

The second definition is not at issue here, as it is undisputed that Allen was not domiciled in this state. We turn to the first definition. There is no question that Annett Holdings had “a place of business in this state.” The only question is whether Allen “regularly” worked in Iowa.

The term “regularly” is not defined by statute. The commissioner defined the term as “conforming to a fixed procedure, usual or customary.” The commissioner reasoned:

The only part of this subsection that deals with where work is performed is the requirement that the employee regularly work in this state. If the legislature had intended for an objective standard such as a majority or plurality of the work to be performed in Iowa it could have easily done so. Instead, it chose the subjective word “regularly.” Something is either regular or irregular. The term does not refer to quantity. It means conforming to a fixed procedure, usual or customary.

Neither the commissioner nor the parties cite Iowa precedent adopting this definition of “regularly.” However, the commissioner’s use of this definition is consistent with our well-established principle of statutory construction that, in the absence of a legislative definition, we will apply the ordinary meaning of the term. Lange v. Iowa Dep’t of Revenue, 710 N.W.2d 242, 247 (Iowa 2006). The definition used by the commissioner is a standard dictionary definition. Harrington v. Univ. of N. Iowa, 726 N.W.2d 363, 368 (Iowa 2007); New World Dictionary 1196 (2d ed.1974). We conclude that the commissioner did not err in adopting it.

The commissioner next determined what would need to be proven in applying this definition to the facts of this case. The commissioner stated:

The statute provides that if the employer has a place of business in this state, Iowa will have jurisdiction if it is usual or customary for the employee to work in this state for the employer. For an over-the-road truck driver, such as the claimant in this case, the employee regularly works in this state if it is usual or customary for the employee to work out of the employer’s terminal in this state as the home terminal, pick up loads in this state and transport loads within or through this state. There is not a statutory requirement to meet some unspecified, arbitrarily determined quantity of work while in this state.

In short, the commissioner determined that the ordinary definition of “regularly works in this state” required an unspecified amount of physical presence in this state. This determination is consistent with dicta in the factually similar case of Heartland Express v. Gardner, 675 N.W.2d 259 (Iowa 2003). There, the court was asked to decide whether the workers’ compensation commissioner had jurisdiction under Iowa Code section 85.71(2) over a claim filed by an over-the-road-truck driver working for an Iowa employer. Gardner, 675 N.W.2d at 260-61. Although the court did not address Iowa Code section 85.71(1), the court discussed the meaning of “principally localized,” a clause that is contained in both sections. Id. at 267. The court stated,

[B]oth parties seemingly concede that Gardner[’s] ... employment was “not principally localized in any state.” Presumably, the latter fact is established by evidence that Gardner’s actual transportation work for Heartland took him to approximately forty states and he spent no more or less time in any one state.

Id. (citation omitted). While this language did not control the court’s disposition of the case, the inference to be drawn is that “principally localized” refers to physical presence in the state. Extending this inference to the first definition of “principally localized” contained in section 85.71(1), there would need to be a showing that the employer had a principal place of business in this state and the employee had “actual transportation work” in this state that was greater than in other states. Id. We conclude the commissioner did not err in determining that the ordinary definition of “regularly” requires an employee’s physical presence in the state.

We turn to the commissioner’s application of law to fact. Here, the commissioner began with the physical presence test but supplemented this test with other factors relating to the employment relationship. See, e.g., Iowa Beef Processors, Inc. v. Miller, 312 N.W.2d 530, 533 (Iowa 1981), overruled on other grounds by Henriksen v. Younglove Constr., 540 N.W.2d 254, 260 (Iowa 1995), (stating “the plain meaning of [employment that is principally localized in this state] indicates that the employee must perform the primary portion of his services for the employer within the territorial boundaries of the State of Iowa or that such services be attributable to the employer’s business in this state”) (emphasis added); George H. Wentz, Inc. v. Sabasta, 337 N.W.2d 495, 501 (Iowa 1983); Patton v. Industrial Com’n, 147 Ill.App.3d 738, 101 Ill.Dec. 215, 498 N.E.2d 539, 544 (Ill.App.Ct.1986) (“Over-the-road truck drivers constitute a unique class of employees whose activity, by its very nature, is transient. The fact that a truck driver may spend a significant amount of time in one state does not detract from the essentially transitory nature of the activity in which he engages. Although the quantity of time an employee spends in a single locale may be a factor in the determination of principal localization of employment, it is not controlling.”); 9 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 143.04[2][c], at 143-24 (2003) (stating “a status rooted in the local state by the original creation of the employment relation there, is not lost merely on the strength of the relative amount of time spent in the local state as against foreign states” and stating, “[g]enerally, an employee loses this status only when his or her regular employment becomes centralized and fixed so clearly in another state that any return to the original state would itself be only casual, incidental and tempo-raiy by comparison. This transference will never happen as long as the employee’s presence in any state, even including the original state, is by the nature of the employment brief and transitory”). The commissioner applied this law as follows:

I find that claimant regularly worked in Iowa for the employer. It was usual and customary for him to pick up the loads in Iowa and drive through Iowa with loads. He brought the truck to the employer’s Iowa terminal and reported there himself in conformity with the employer’s established procedures. He was controlled by the employer’s dispatcher. The amount and frequency of claimant’s work in Iowa was not so minor as to characterize it as irregular, out of the ordinary, unusual or abnormal. I find that claimant worked exclusively, or nearly so, performing work attributable to the employer’s Iowa business. I find that the employer’s Iowa terminal was the claimant’s home terminal and business home. It was home, the hub and brain-center of the employment relationship. It was the place from which claimant’s actions were controlled and the home base to which he returned. The employment contract was made in Iowa and administered in Iowa. The fact that the employer expressly contracted to have workers’ compensation matters be governed by Iowa law is a clear manifestation that it was intended that the employment relationship would be based in Iowa rather than in any other location. Claimant’s home terminal was never changed from Iowa and the contract of employment was never administered from any other location. I find that claimant’s employment was principally localized in Iowa.

Based on these findings, the commissioner concluded “jurisdiction exists under section 85.71(1).”

Annett Holdings takes issue with this application of law to fact. The company maintains the commissioner “did not focus on the amount of physical presence that the claimant in this ease had in Iowa in conducting his work activities for Annett.” Allen counters that the commissioner in fact applied a physical presence test and “determined that [he] worked here regularly because he spent up to 25% of his time working here.”

We agree with Allen that the commissioner found Allen’s working time in Iowa was “probably between 10 percent and 25 percent.” The commissioner further found “[i]t was usual and customary for him to pick up loads in Iowa and drive through Iowa with loads.” Finally, he found that Allen “brought the truck to the employer’s Iowa terminal and reported there himself in conformity with the employer’s established procedures.” These findings are consistent with the physical presence test the commissioner adopted and they support his determination that Allen regularly worked in Iowa.

We recognize that the commissioner made additional findings of fact relating to Allen’s relationship with his employer that were not premised on his physical presence in Iowa. To the extent the commissioner considered this relationship in determining whether Allen “regularly” worked in Iowa, he broadened the ordinary definition of “regularly” that he adopted. He also bypassed the dicta in Gardner that regular work in the state means an employee’s “actual transportation work” for the employer in the state. Gardner, 675 N.W.2d at 267. However, in light of his initial finding that Allen was physically present in Iowa for a sufficient period of time to constitute regular work in Iowa, these additional findings were unnecessary to the decision.

We turn to the final question: whether the commissioner’s fact findings on Allen’s physical presence in the state are supported by substantial evidence. The parties submitted varying estimates of the time Allen spent in this state. “It is the commissioner’s duty as the trier of fact to ... weigh the evidence, and decide the facts in issue.” Arndt v. City of Le Claire, 728 N.W.2d 389, 394-95 (Iowa 2007). We conclude the commissioner’s fact findings on Allen’s physical presence in the state are supported by substantial evidence.

We conclude the commissioner did not err in finding subject matter jurisdiction under the first definition in section 85.71(1). In light of our conclusion, we need not address whether jurisdiction attached under section 85.71(2).

IV. Evidentiary Support for Commissioner’s Findings Regarding Injury, Causation and Extent of Disability

As noted, the commissioner adopted the fact-findings contained in the arbitration decision on the merits of Allen’s workers’ compensation claim. Those detailed fact findings are supported by substantial evidence. Id. While the record contains evidence that supports the employer’s position, we may not “improperly weight ] the evidence to overrule the commissioner’s findings.” Id.

AFFIRMED.

      . Annett Holdings raised the issue in its answer to the petition, withdrew it at the time of hearing, and reasserted the absence of subject matter jurisdiction after receiving the adverse arbitration decision. The company’s initial decision not to pursue the jurisdictional issue did not result in a waiver of the issue. See Bair v. Blue Ribbon, Inc., 256 Iowa 660, 665-666, 129 N.W.2d 85, 88 (1964) (stating objection based on lack of subject matter jurisdiction may be raised at any time and is not subject to waiver or consent). For the same reason, the contract language providing for Iowa jurisdiction over the claim is inapposite, as parties cannot consent to subject matter jurisdiction. Heartland Express, Inc. v. Terry, 631 N.W.2d 260, 265 (Iowa 2001).

      . This statute was recently amended. 2005 Iowa Acts ch. 168, § 12 (codified at Iowa Code § 85.71(5) (2007)). We examine the version of the statute in place at the time the workers’ compensation claim was filed. Heartland Express v. Gardner, 675 N.W.2d 259, 266 (Iowa 2003).

      . Allen contends the commissioner erred in concluding section 85.71 is a subject matter jurisdiction statute. The Iowa Supreme Court rejected this argument in Gardner, stating, "section 85.71 has previously been interpreted to be a subject matter jurisdiction stat-te, and we find no reason to diverge from that determination.” Gardner, 675 N.W.2d at 263 n. 3.

      . In Henriksen v. Younglove Constr., 540 N.W.2d 254, 257 n. 3 (Iowa 1995), superseded by statute 1997 Iowa Acts ch. 106, § 1, as recognized in Gardner, 675 N.W.2d at 264, the Iowa Supreme Court stated the words "or some other state” should probably have been omitted, but declined to decide whether the inclusion of these words was inadvertent or intentional.

      . Although this opinion was overruled, we agree with the commissioner that the portion of the statute relating to the employer's place of business was not affected.


author: SACKETT, C.J.

text:
    In the Interest of E.G., Minor Child, State of Iowa, Appellant.
    No. 06-1894.
    Court of Appeals of Iowa.
    July 12, 2007.
    Thomas J. Miller, Attorney General, Charles Phillips, Assistant Attorney General, William E. Davis, County Attorney, and Gerda Lane, Assistant County Attorney, for appellant.
    Barbara E. Maness, Davenport, for in-tervenor-appellee.

      Angela Fritz Reyes, Davenport, guardian ad litem for minor child.
    Considered by SACKETT, C.J., and HUITINK and MAHAN, JJ.
   SACKETT, C.J.

The parental rights of Elijah were terminated and the Iowa Department of Human Services (Department) was named his guardian and granted his custody. The Department was in the process of placing Elijah in an adoptive home when Susan, his foster care mother, was allowed to intervene and sought his custody. The juvenile court, in a post-termination permanency order, found Elijah should remain in Susan’s custody, approved Susan’s adoption of him, and ordered the State to provide her with an adoption subsidy.

The State contends the juvenile court erred in (1) allowing Elijah’s foster mother, Susan, to intervene, (2) overriding the Department’s decision to place Elijah in an adoptive placement with parents the juvenile court found to be “highly qualified,” (3) placing custody of Elijah with his foster mother, (4) approving Susan’s adoption of Elijah, and (5) ordering that she be paid an adoption subsidy. We affirm in part, vacate in part and remand.

I. SCOPE OF REVIEW.

Our review generally is de novo. See In re K.C., 660 N.W.2d 29, 32 (Iowa 2003) (permanency order); In re J.M.W., 492 N.W.2d 686, 689 (Iowa 1992) (adoption dispute); In re Adoption of Moriarty, 260 Iowa 1279, 1285, 152 N.W.2d 218, 221 (1967) (adoption-related equitable proceeding). We review both the facts and the law and adjudicate rights anew. In re H.G., 601 N.W.2d 84, 85 (Iowa 1999). Although we give weight to the juvenile court’s findings of fact, we are not bound by them. In re N.M., 528 N.W.2d 94, 96 (Iowa 1995).

II. BACKGROUND AND PROCEEDINGS.

Elijah was removed from his mother’s care and in March of 2005, he was placed as a foster child in Susan’s home. He has resided there since that time. In early 2006 a decision was made by the Department to seek termination and adoption. The Department began looking for an adoptive home for Elijah. In mid-February the Department interviewed the chosen family and the guardian ad litem was invited to participate in the interview. She did not participate but orally agreed to the Department’s selection. Susan was told shortly thereafter an adoptive home had been selected.

Elijah’s mother’s parental rights were terminated in May of 2006 and his guardianship and custody was given to the Department. Susan, aware prior to the termination that the Department was seeking an adoptive home for Elijah, did not seek to intervene at the time of the termination hearing, nor had she asked to be considered for adoptive placement.

Not until July 3, 2006, did Susan file her motion to intervene. The motion was granted. Susan then filed a petition for custody, asking that Elijah continue to be placed in her home until adoption could be finalized.

The guardian ad litem for Elijah filed a request for stay of removal, contending the Department had told her that they had chosen an adoptive home other than Susan’s. The guardian ad litem disagreed with the decision, being of the opinion that Susan should have the first right to adopt Elijah and if removal were not stayed the child might be moved before the next review hearing. In an ex parte order entered the next day, the court ordered that Elijah should not be moved from his current placement until the court decided his custody.

The State subsequently filed a motion seeking reconsideration of the order granting intervention. The State also filed a motion to “reinstate” the Department’s custody and guardianship contending the ex parte order stayed the Department from exercising its custodial powers on a de facto basis, temporarily relieved the Department of Elijah’s custody, and stripped the Department of its powers to consent to adoption without notice or hearing. After a contested hearing, the court denied both of the State’s motions.

The State then filed a motion to dismiss Susan’s petition for custody, contending the Department had been appointed guardian and custodian and Susan only sought custody. The State argued that Susan wanted the Department to retain guardianship in name only for the purpose of receiving subsidized adoption funds when the Department no longer had the power of a guardian to choose the adoptive parent or the foster placement — rather this right had been transferred to the juvenile court. The State argued, among other things, that federal foster care maintenance funds are not available when a court orders a specific foster care provider, and because it appears that Susan will be seeking federal adoption subsidy funds, it is unclear if that would be lawful in accordance with federal rules and regulations if the Department does not have real guardianship.

A hearing was held and the juvenile court filed an order finding Elijah should remain in the custody of Susan. The court then approved the adoption of Elijah by Susan as in his best interest and provided the State should be obligated to provide an adoption subsidy for Elijah.

III. INTERVENTION.

We first consider the Department’s claim that the juvenile court abused its discretion in sustaining Susan’s motion to intervene. A foster parent “may petition the court to be made a party” to juvenile proceedings. Iowa Code section 232.91(2) (2005). The statute does not, however, give a foster parent an unconditional right to intervene. The juvenile court is accorded a certain amount of discretion to deny intervention in proper cases. See In re A.G., 558 N.W.2d 400, 403 (Iowa 1997); In re B.B.M., 514 N.W.2d 425, 426 (Iowa 1994).

The State contends, among other things, that allowing Susan’s intervention caused serious delay in obtaining permanent placement for Elijah and is inconsistent with the Department as Elijah’s guardian seeking a placement for him.

By as early as March 1, 2006, Susan was advised the State was seeking termination and an adoptive home had been selected for Elijah. Susan did not at that time ask to be considered to adopt the child. She made no effort to update her home study despite being advised such an update was necessary if she were interested in adoption. She made no effort to intervene in the termination proceedings where she could have requested custody of Elijah. See Iowa Code § 232.117(3)(c). Susan’s petition for intervention and custody came only after substantial efforts had been made by the Department to obtain an adoptive home and Elijah was within several weeks of going to that home. However, the proceedings had not been finalized. The fact parental rights have been terminated does not “finalize” the entire proceeding. In re C.L.C., 479 N.W.2d 340, 344 (Iowa Ct.App.1991).

While the juvenile court should be reluctant to grant a foster parent’s petition for intervention if it will delay a child’s adoption and/or chance for permanency as it has here, we cannot say that the juvenile court abused its discretion in allowing Susan to intervene, for she has an interest in the future of Elijah, whom she had cared for during much of his young life. See A.G., 558 N.W.2d at 405.

Because of our holding we need not address whether Susan’s intervention at this late stage of the proceedings gave her the right to seek the relief she did. We affirm the order allowing Susan to intervene.

IV. ADOPTIVE PLACEMENT.

The State contends that the juvenile court erred in overriding the Department’s decision to place Elijah in an adoptive home and providing that Elijah be adopted by Susan. While recognizing Susan has a bond with the child and has been a good foster mother, the State argues that Susan’s home is not the optimum placement for Elijah in the long term. The State advances that an adoptive placement is different than a foster placement, and because an adoptive placement is long term, it must be evaluated over the long term. The State also points out that in choosing an adoptive placement, a larger geographical area can be considered, as there is no longer a need to have the child in close proximity to his or her birth parents to facilitate reunification efforts. The State has concerns that Susan, forty-nine years old, single, unemployed, and an asthmatic who continues to smoke cigarettes has few economic resources, no savings or life insurance, and relies on food stamps, subsidized housing, and has no income other than benefits received for an adopted child in her home.

The State contends (1) the juvenile court, in making the Department guardian, gave the Department the right to “consent to adoption and to make any other decision that the parents could have made when the parent-child relation existed” and (2) that Elijah’s best interest is not served in allowing Susan to adopt him. See Iowa Code § 232.2(21).

The juvenile court was statutorily responsible after termination of Elijah’s mother’s parental rights, not only for initially assigning a guardian and custodian for Elijah, but also for continuing supervision and monitoring of him consistent with his best interests. The Department, assigned “guardianship and custody” following the termination hearing, was charged with among other things “to make important decisions which have a permanent effect on the life and development of that child,” to serve as custodian as well as the authority to consent to the child’s adoption, and to make any other decision that the parents could have made when the parent-child relationship existed. Id. The Department also has the responsibility to advise the court on a regular basis of the status of the child’s placement and efforts being made towards permanency and/or adoption. The juvenile court carries responsibility for continued oversight.

The Department remains Elijah’s guardian. Susan did not seek to remove the Department as guardian nor did the juvenile court seek to do so. Rather, the court made decisions that statutorily were decisions the guardian was assigned to make.

The legislature, while giving the juvenile court continuing oversight consistent with the best interest of the child, did not give the juvenile court the right to establish custody or consent to adoption. Rather, these rights were specifically granted to the guardian. In establishing Susan as Elijah’s custodian and providing for her adoption of Elijah the juvenile court exercised authority the legislature gave to the Department as guardian.

The State argues strongly that, under these circumstances, the juvenile court does not have the authority to direct the specific adoptive home for the child. In In re C.D.P., 315 N.W.2d 731, 733 (Iowa 1982), the supreme court held that in delinquency dispositions, the juvenile court picks the type of placement for the delinquent child but not the specific institution. That decision is left to the child’s custodian. C.D.P., 315 N.W.2d at 733. The court determined that when the legislature gave the juvenile court the authority to specify the child’s best interests, it granted authority to the juvenile court to direct the type of placement the Department was to make, but did not empower the juvenile court to direct a specific placement, though the court had the power to monitor the placement. Id.

The evidence shows the Department was responsibly discharging its duties as guardian. It found an adoptive home for Elijah that the juvenile court found to be “highly qualified,” a finding with which we agree. We affirm the guardianship of the Department and reverse the juvenile court’s order placing the child with Susan.

We vacate the adoption order. No adoption petition has ever been filed. Iowa Code section 600.3 (2005) provides in part, “An action for the adoption of a natural person shall be commenced by the filing of an adoption petition.” (Emphasis supplied.) Susan did not comply with this code provision.

That said, we make no determination whether the Department should consent to an adoption ifior when an adoption petition is filed. This issue, as well as who should be Elijah’s adoptive parents or parent, can be put before the court if/or when an adoption petition is filed. Having vacated the adoption order we also vacate the subsidy.

V. CONCLUSION.

We affirm the guardianship of the Department. We vacate the adoption order and the subsidy order and remand to the juvenile court.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

      . These efforts began in Februaiy of 2006 and included a selection process involving five prospective adoptive families, a series of staff-ings, and finally finding a home with special abilities to care for the child.

      .The Safe and Timely Interstate Placement of Foster Children Act of 2006 amended 42 U.S.C. § 675(5)(G) to provide that foster parents, preadoptive parents, and relative caregivers have a "right” to be heard in any "proceeding.” Pub.L. No. 109-239, § 8, 120 Stat. 513 (2006). The amendment did not change the language dealing with being made a “party” that provides, "this subparagraph shall not be construed, to require that any foster parent, preadoptive parent, or relative providing care for the child be made a party to such a review or hearing solely on the basis of such notice and right to be heard." 42 U.S.C. § 675(5)(G) (2006) (emphasis added).

      . Iowa Code § 232.117(3).

      . Iowa Code §§ 232.117(6)-(9).

      . Iowa Code § 232.2(21).

      . Iowa Code § 232.2(21)(c).

      . Iowa Code § 232.2(21)(e).

      . Iowa Code §§ 232.117(6)-(8).

      . Iowa Code §§ 232.117(6)-(9).

      . Iowa Code § 232.118 (2005) provides the procedure for removal of a guardian, but this procedure was not utilized.

      .The court was addressing the then Iowa Code section 232.52 (1981). That section authorized the juvenile court to commit the child to “the department of social services for purposes of foster care and prescribing the type of placement which will serve the best interest of the child and the means by which the placement shall be monitored by the court.” Iowa Code § 232.52.


author: MILLER, J.

text:
    STATE of Iowa, Plaintiff-Appellee, v. Todd Allen NOSA, Defendant-Appellant.
    No. 06-1809.
    Court of Appeals of Iowa.
    July 12, 2007.

      Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Cristen Douglass, Assistant Attorney General, William E. Davis, County Attorney, and Julie Walton, Assistant County Attorney, for appellee.
    Todd A. Nosa, Pro Se.
    Considered by SACKETT, C.J., and VOGEL and MILLER, JJ.
   MILLER, J.

Todd Nosa appeals from his conviction and sentence, following his guilty plea, for credit card fraud. He contends the district court abused its discretion by not allowing him to exercise his right to allocution, his guilty plea was in violation of his Fifth Amendment privilege against self-incrimination, and he received ineffective assistance of counsel. We affirm his conviction, vacate the sentence and remand the case for resentencing, and preserve his ineffective assistance claim for a possible postconviction proceeding.

The State charged Nosa, by trial information, with credit card fraud, in violation of Iowa Code section 715A.6(2) (2005). Nosa signed and filed a written guilty plea and a written memorandum of the parties’ plea agreement. A sentencing hearing was held on this case and another pending Scott County prosecution against Nosa. At the time of the hearing Nosa had already been sentenced to a ten-year prison term in yet another case. At hearing the State recommended the sentence for the credit card fraud conviction and the sentences in the other pending prosecution be run consecutively. Nosa’s attorney argued for concurrent sentences. Immediately following defense counsel’s argument the court district asked, “Is there anything else you want to say?” Nosa’s counsel responded, “No, Your Honor.” Nosa did not respond to the court’s inquiry. The court sentenced Nosa to a period of incarceration not to exceed two years on the credit card fraud conviction and ordered that sentence to run consecutively to the sentences it imposed on the other convictions in the other pending case.

Nosa appeals, claiming the district court erred in failing to allow him to exercise his right to allocution, his guilty plea was in violation of his Fifth Amendment privilege against compulsory self incrimination because the State told him it would not seek habitual offender sentencing enhancement if he pled guilty, and his counsel was ineffective for misadvising him concerning what the court would do at sentencing.

Our review of sentencing procedures is for an abuse of discretion. State v. Craig, 562 N.W.2d 633, 634 (Iowa 1997). Such abuse will be found only if the district court’s discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable. Id.

A sentencing court is required under Iowa Rule of Criminal Procedure 2.23(3)(a) to ask the defendant whether he or she “has any legal cause to show why judgment should not be pronounced against” him or her. The rule continues on in paragraph (d) to require that prior to the court’s rendition of judgment “counsel for the defendant, and the defendant personally, shall be allowed to address the court where either wishes to make a statement in mitigation of punishment.” Together these requirements are referred to as a defendant’s right to allocution. See Craig, 562 N.W.2d at 635-37.

Sentencing courts are not required to use any particular language to satisfy rule 2.23(3)(d). State v. Duckworth, 597 N.W.2d 799, 800 (Iowa 1999); Craig, 562 N.W.2d at 635. Substantial compliance with the rule is sufficient. Duckworth, 597 N.W.2d at 800. “The important thing is whether the defendant is given an opportunity to volunteer any information helpful to the defendant’s case.” Craig, 562 N.W.2d at 635. Therefore, as long as the district court provides the defendant with an opportunity to speak regarding his punishment, the court is in compliance with the rule. Id. In dealing with a comparable federal rule the Supreme Court has stated:

[T]o avoid litigation arising out of ambiguous records in order to determine whether the trial judge did address himself to the defendant personally, we think that the problem should be, as it readily can be, taken out of the realm of controversy. This is easily accomplished. Trial judges before sentencing should, as a matter of good judicial administration, unambiguously address themselves to the defendant. Hereafter trial judges should leave no room for doubt that the defendant has been issued a personal invitation to speak prior to sentencing.

Green v. United States, 365 U.S. 301, 305, 81 S.Ct. 653, 655, 5 L.Ed.2d 670, 674 (1961).

Nosa argues that at no point prior to pronouncing sentence was he afforded his right to allocution as provided for in rule 2.23(3). After reviewing the sentencing transcript, we agree. Although trial counsel availed himself of the opportunity to address the court on the subject of sentencing, our supreme court has held the right to allocution is personal to the defendant and will not be deemed exercised through counsel alone. Craig, 562 N.W.2d at 636-37. The language of rule 2.23(3)(d!) is consistent with the holding in Craig, indicating “counsel for defendant, and the defendant personally ” shall have the opportunity to exercise the right. (Emphasis added).

The district court did not unambiguously provide Nosa with the opportunity to exercise his right to allocution. We conclude the sentence in this case must be vacated and the case remanded to the district court for resentencing.

Nosa next claims his guilty plea was in violation of his Fifth Amendment privilege against self-incrimination because the State threatened to file a habitual offender sentencing enhancement if he did not plead guilty. Generally our review of a challenge to the entry of a guilty plea is for correction of errors at law. State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001). To the extent Nosa is claiming a constitutional violation, our review is de novo in light of the totality of the circumstances as shown by the entire record. State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001).

To preserve guilty plea challenges for appeal, a defendant must file a motion in arrest of judgment within forty-five days of entry of a guilty plea and no later than five days before the date set for sentencing. Iowa R.Crim. P. 2.24(3)(a), (b). Nosa did not file a motion in arrest of judgment challenging his guilty plea, and therefore has not preserved error on this issue for our review. See State v. Carter, 582 N.W.2d 164, 165 (Iowa 1998).

Furthermore, in support of this claim Nosa alleges that his plea stated: “The State will not seek the Habitual Criminal enhancement if Defendant pleads guilty pursuant to this Plea Agreement.” Nosa’s plea consists of the written guilty plea and the written memorandum of plea agreement filed in this case. Upon our careful review of the record we find no term, either express or implied, such as alleged by Nosa. To the contrary, the written guilty plea expressly states that “no one has made any promises or inducements to make me plead guilty, nor has anyone threatened me to cause me to plead guilty.”

The relevant record thus contains and consists of Nosa’s own assertion that no promises or inducements led to his guilty plea, and thus his bare allegation to the contrary neither meets a minimum threshold of credibility nor overcomes the presumption the record truly reflects the facts. Therefore, and assuming Nosa has preserved error on this claim, we find it to be without merit. See, e.g., Foster v. State, 395 N.W.2d 637, 638 (Iowa 1986) (holding applicant for postconviction relief not entitled to hearing where allegation directly contradicted record and minimum threshold of credibility not met); State v. Boge, 252 N.W.2d 411, 414 (Iowa 1977) (same); see also Wise v. State, 708 N.W.2d 66, 70-71 (Iowa 2006) (stating district court could have summarily dismissed application for postconviction relief where applicant’s allegation directly contradicted the overwhelming record).

Finally, Nosa claims his trial counsel was ineffective for misadvising him concerning what the court would do at sentencing. He contends his counsel told him the court would run the sentence on the credit card fraud conviction and the sentences on the other pending charges all concurrently. As noted above, the court ordered the sentence in this case and the sentences in the other case to all run consecutively. Nosa argues that if he would have known he was not going to receive concurrent sentences he would, not have pled guilty in this case.

We ordinarily preserve ineffective assistance of counsel claims for a post-conviction proceeding, doing so when and because the record is inadequate to resolve the claims on direct appeal. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). Such is the case here. We therefore preserve for a possible postconviction proceeding Nosa’s claim that trial counsel rendered ineffective assistance by misadvising him concerning the sentence that would be imposed in this case.

CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.

      . We continue to urge defense counsel to avoid the unnecessary lime and expense of appeal by bringing to the attention of the district court any claimed errors that can readily be remedied in the trial court, such as the failure to afford the defendant a right of allocution. See State v. Millsap, 547 N.W.2d 8, 10 n. 1 (Iowa Ct.App.1996).