IN THE COURT OF APPEALS OF IOWA

No. 21-1362

Filed August 31, 2022

STATE OF IOWA,

Plaintiff-Appellee,

vs.

JUAN JOSE CONTRERAS MENDOZA,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Woodbury County, Patrick H. Tott, 

Judge.

Juan Jose Contreras Mendoza appeals his convictions for two counts of 

second-degree sexual abuse. AFFIRMED.

Alan R. Ostergren of Alan R. Ostergren, PC, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Richard J. Bennett, Assistant 

Attorney General, for appellee.

Considered by Vaitheswaran, P.J., and Tabor and Badding, JJ.
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VAITHESWARAN, Presiding Judge.

A jury found Juan Jose Contreras Mendoza guilty of two counts of seconddegree sexual abuse involving two children. The district court sentenced him to 

prison terms not exceeding twenty-five years, to be served consecutively. On 

appeal, Contreras contends (I) the district court abused its discretion in denying 

his motion to sever the charges for separate trials; (II) the appellate courts should 

address his attorney’s failure to request a particular jury instruction under a plainerror standard; and (III) the district court abused its discretion in imposing 

consecutive sentences. 

I. Motion to Sever 

Approximately three weeks before trial, Contreras moved to sever the 

charges. He asserted “the events in question allegedly occurred on separate 

dates, at different locations, and with two different alleged victims” and “[t]here 

[was] no element of the alleged crime against one of the alleged victims that 

require[d] proof of an element of the alleged crime against the other alleged victim.” 

In his view, “[a]llowing the charges to go before a jury simultaneously [was] unfair 

and prejudicial to [his] interests.” The State resisted the motion on the merits but 

also stated the motion was untimely. 

The district court did not address the timeliness of the motion. Instead, the 

court applied the severance rule as follows: 

Under [Iowa Rule of Criminal Procedure] 2.6(1) two or more 

indictable offenses that arise from the same transaction or 

occurrence or from two or more transactions or occurrences 

constituting parts of a common scheme or plan may be prosecuted 

as separate counts in a single complaint unless the trial court in its 

discretion determines otherwise. In the present case, the allegations 

asserted by the State indicate that the alleged victims were of a
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similar young age, the alleged offenses occurred at the same home, 

both alleged victims would be witnesses in both cases, as would 

several other witnesses, and the nature of the alleged abuse is 

significantly similar in both cases. Under these circumstances, the

Court finds that the allegations herein would, if proven, constitute 

parts of a common scheme or plan. Accordingly, it is appropriate for 

the State to charge the counts together as part of a single complaint. 

While some prejudice may result to the Defendant to try these two 

counts together, the Court finds that the emotional burden placed 

upon the minor alleged victims having to testify on two separate 

occasions outweighs any prejudice to the Defendant. The 

Defendant’s Motion to Sever is denied.

On appeal, Contreras contends “[t]he district court did not explain why the 

charges against [him] were a common scheme or plan.” The State preliminarily 

responds that the severance motion was untimely. The State asks us to affirm the 

district court’s denial of the motion on this alternate ground. See DeVoss v. State, 

648 N.W.2d 56, 62 (Iowa 2002) (allowing affirmance of district court’s ruling on any 

valid alternative ground supported by the record and raised before the court). We 

begin and end with that contention.

Iowa Rule of Criminal Procedure 2.11(4) states most motions “shall be filed 

when the grounds . . . reasonably appear but no later than 40 days after 

arraignment.” The rule further states a defendant’s failure to meet the deadline 

“shall constitute waiver . . . , but the court, for good cause shown, may grant relief 

from such waiver.” Iowa R. Crim. P. 2.11(3). 

The supreme court granted relief from the rule in the wake of the COVID19 pandemic. Of particular note is paragraph 14 of an amended November 24, 

2020 supervisory order. See Iowa Supreme Ct. Supervisory Order, In the Matter 

of Ongoing Preparation for Coronavirus/COVID-19 Impact on Court Services ¶ 14

(Nov. 30, 2020). That paragraph extended the deadlines for filing pretrial motions 
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until thirty days before trial for any case in which arraignment occurred before 

February 1, 2021. Id.

Contreras was arraigned on August 13, 2020, and filed his severance 

motion on July 13, 2021. Trial began on August 3, 2021. Even with the benefit of 

the supreme court’s extension, Contreras’ motion was untimely. 

As the State notes, Contreras “made no attempt to show good cause for the 

untimely motion, nor did [he] ever seek a continuance of the due date for the 

motion.” We agree. While Contreras claimed “recently conducted” depositions 

made apparent that “the events in question allegedly occurred on separate dates, 

at different locations, and with two different alleged victims,” Contreras did not 

require deposition testimony to discern those facts, which were apparent from the 

trial information. Given the untimeliness of the severance motion, we conclude the 

district court appropriately denied it.1

II. Jury Instruction—Plain Error

Contreras challenges his trial attorney’s failure to request “a stock jury 

instruction about deciding multiple counts separately.” He acknowledges we can 

no longer hear ineffective-assistance-of-counsel claims on direct appeal, and he 

acknowledges “there is no plain error rule in Iowa.” See State v. Treptow, 960 

N.W.2d 98, 109 (Iowa 2021) (“We have repeatedly rejected plain error review and 

will not adopt it now.”). He nonetheless asks us to adopt and apply a plain-error 

standard. We are not at liberty to overrule supreme court precedent. See

1

In any event, we discern no abuse of discretion in the district court’s application 

of the severance rule. See Iowa R. Civ. P. 2.6(1); State v. Romer, 832 N.W.2d 

169, 174 (Iowa 2013) (setting forth standard of review).
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Bomgaars v. State, 967 N.W.2d 41, 48 n.4 (Iowa 2021). Accordingly, we decline 

Contreras’ invitation to review counsel’s failure to request the instruction.

III. Consecutive Sentences

Contreras contends the district court failed to “give adequate reasons for 

imposing consecutive sentences.” See State v. Hill, 878 N.W.2d 269, 273 (Iowa 

2016) (“Iowa Rule of Criminal Procedure 2.23(3)(d) requires the district court to 

‘state on the record its reason for selecting the particular sentence,’” including a 

decision to impose consecutive sentences.). To the contrary, the court stated:

The Court’s going to find that these two sentences of 

incarceration should be ordered to be served consecutively to each 

other based upon the separate and serious nature of the offenses 

involved and that there were two separate victims, at two separate 

and distinct times, and to require a lesser sentence would promote 

disrespect for the law and these circumstances in addition to the prior 

factors discussed.

. . . .

The Court believes that the foregoing sentence imposed 

provides for the maximum opportunity for the defendant’s 

rehabilitation while also protecting the community from further 

offenses by the defendant or others. The Court has considered the

defendant’s age, defendant’s prior record, the nature of the offense 

committed, the contents of the presentence investigation, as well as 

the comments of the victims and the victim impact statements in 

reaching this conclusion, and again the sentences are ordered to be 

served consecutively based upon the separate and serious nature of 

the offenses involved.

We discern no abuse of discretion in the court’s statement of reasons supporting 

the imposition of consecutive sentences. State v. August, 589 N.W.2d 740, 744 

(Iowa 1999) (setting forth standard of review).

AFFIRMED.