State of Iowa v. Luis Avalos ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-0767
Filed July 19, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
LUIS AVALOS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Jason A. Burns,
District Associate Judge.
The defendant appeals from his conviction for operating while under the
influence. AFFIRMED.
Rockne Cole of Cole Law Firm, Iowa City, for appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee.
Considered by Danilson, C.J., and Potterfield and Bower, JJ.
2
POTTERFIELD, Judge.
Luis Avalos appeals from his conviction for operating while under the
influence. Avalos purportedly challenges the sufficiency of the evidence to
support his conviction, maintaining the State failed to introduce substantial
evidence he was under the influence of alcohol or intoxicated. However, Avalos
“candidly admits he did not raise a sufficiency challenge below.” 1 See Metz v.
Amoco Oil Co., 581 N.W.2d 597, 600 (Iowa 1998) (“Our preservation rule
requires that issues must be presented to and passed upon by the district court
before they can be raised and decided on appeal.”). And he does not raise his
claim under the ineffective-assistance-of counsel framework.2 See State v.
Fountain, 786 N.W.2d 260, 263 (Iowa 2010) (“Ineffective-assistance-of-counsel
claims are an exception to the traditional error-preservation rules.”). Thus,
Avalos has failed to raise a claim that is preserved for our review, and we affirm
without further opinion. See Iowa Ct. R. 21.26(1)(a), (e).
AFFIRMED.
1
Avalos “invites the State to waive objection on this ground.” The State has not
accepted Avalos’s invitation. Moreover, even if it had, we would not be bound by such a
concession. See State v. Bergmann, 633 N.W.2d 328, 332 (Iowa 2001) (“Although the
State concedes that error has been preserved on every issue raised on appeal . . ., we
disagree.”); Top of Iowa Co-op v. Sime Farms, Inc. 608 N.W.2d 454, 470 (Iowa 2000)
(“In view of the range of interests protected by our error preservation rules, this court will
consider on appeal whether error was preserved despite the opposing party’s omission
in not raising the issue at trial or on appeal.”); State v. Young, No. 09-1938, 2011 WL
4579863, at *5 (Iowa Ct. App. Oct. 5, 2011) (raising the issue of error preservation sua
sponte “in spite of the State’s acquiescence”).
2
Avalos states we may, if we choose, address his claim on prejudice grounds.
However, he has provided no other argument or authority to support a claim for
ineffective assistance. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in
support of an issue deemed waiver of that issue.”). “Judges cannot assume the role of a
partisan advocate and do counsel’s work.” State v. Coleman, 890 N.W.2d 284, 304
(Iowa 2017) (Waterman, J., dissenting) (citing Hyler v. Garner, 548 N.W.2d 864, 876
(Iowa 1996)). Thus, without determining whether the record is adequate for review of
the issue on direct appeal, we decline to consider it.