State of Iowa v. Tommy Gines, Jr. , 844 N.W.2d 437 ( 2014 )

IN THE SUPREME COURT OF IOWA
No. 11–1272
Filed March 21, 2014
STATE OF IOWA,
Appellee,
vs.
TOMMY GINES, JR.,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Douglas F.
Staskal, Judge.
The defendant seeks further review of a court of appeals decision
affirming his convictions and sentences. DECISION OF COURT OF
APPEALS VACATED; JUDGMENT OF DISTRICT COURT REVERSED,
SENTENCES VACATED, AND CASE REMANDED WITH DIRECTIONS.
Mark C. Smith, State Appellate Defender, and Dennis D.
Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Jean C. Pettinger,
Assistant Attorney General, John P. Sarcone, County Attorney, and
James P. Ward, Assistant County Attorney, for appellee.
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WIGGINS, Justice.
The defendant in this case argues his trial counsel was ineffective
in permitting him to enter a guilty plea to three counts of intimidation
with a dangerous weapon with intent in violation of Iowa Code section
708.6 (2011) and that the court erred in imposing three consecutive
sentences. We transferred this case to the court of appeals. It affirmed
the defendant’s convictions. On further review, we find trial counsel was
ineffective for allowing the defendant to plead guilty to three separate
charges of intimidation with a dangerous weapon with intent when no
factual basis existed to establish his shooting of his gun in the air was
three separate and distinct acts. Thus, we do not need to reach the
defendant’s claim that the court erred in imposing three consecutive
sentences. Therefore, we vacate the decision of the court of appeals,
reverse the judgment of the district court on the three separate charges
of intimidation with a dangerous weapon with intent, vacate the
sentences, and remand the case for further proceedings consistent with
this opinion.
I. Background Facts and Proceedings.
On May 6, 2011, Tommy Gines, Jr. was in the parking lot of the
Courtside Bar in Polk County. Gines fired multiple gunshots in the air in
the presence of other people.
The State originally charged Gines by information with one count
of intimidation with a dangerous weapon with intent in violation of Iowa
Code section 708.6 and one count of a felon in possession of a firearm in
violation of section 724.26. The State later amended the information to
include five counts of intimidation with a dangerous weapon with intent,
and one count of a felon in possession of a firearm. The amended
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information also contained a habitual-offender sentencing enhancement
applying to each count under section 902.8.
On July 7, Gines pled guilty under a plea agreement to three
counts of intimidation with a dangerous weapon with intent and one
count of a felon in possession of a firearm. The guilty plea record
regarding the factual basis for the three separate counts of intimidation
with a dangerous weapon with intent was as follows:
THE COURT: Now, these are the facts that the State
would have to prove if you had a trial in order for a jury to
find you guilty of intimidation with a dangerous weapon:
That on or about May 26, 2011, here in Polk County
you shot a dangerous weapon, which could be a firearm, into
or within an assembly of people nearby, a group of people,
and you placed those people in reasonable apprehension of
serious injury by shooting a firearm near them and that your
act at the time was done with the intent to injure or provoke
fear or anger in the others that were nearby when you fired
the firearm.
Those are the facts that the State would have to prove
if you had a trial in order for a jury to find you guilty of
intimidation with a dangerous weapon.
Do you understand what the State would have to prove
if you had a trial?
THE DEFENDANT: Yes.
THE COURT: Do you have any questions about what
the State would have to prove if you had a trial?
THE DEFENDANT: No.
THE COURT: Do you have any questions about
anything that I’ve explained so far?
THE DEFENDANT: No.
....
THE COURT: And just to repeat, you’ve understood
everything I’ve explained so far?
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THE DEFENDANT: Yes, I have.
THE COURT: Understanding everything I’ve explained
so far, as to Count I, intimidation with a dangerous weapon,
a C felony, how do you plead? Guilty or not guilty?
THE DEFENDANT: Guilty.
THE COURT: And as to Count II, intimidation with a
dangerous weapon, how do you plead? Guilty or not guilty?
THE DEFENDANT: Guilty.
THE COURT: In Count III, intimidation with a
dangerous weapon, guilty or not guilty?
THE DEFENDANT: Guilty.
....
THE COURT: Tell me what you did that makes you
guilty of intimidation with a dangerous weapon.
THE DEFENDANT: I fired some shots at a bar, local
bar, outside. People were around.
THE COURT: And were these shots from a firearm?
THE DEFENDANT: Yes.
THE COURT: A pistol, or what kind of a firearm?
THE DEFENDANT: Pistol.
THE COURT: And was this at or -- at the Courtside
bar or in the parking lot of the Courtside bar?
THE DEFENDANT: Yes.
THE COURT: And that’s located in Polk County, isn’t
it?
THE DEFENDANT: Yes.
THE COURT: Was this on May -- on or about May 6,
2011?
THE DEFENDANT: Yes.
THE COURT: And were there people nearby when you
were firing these shots?
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THE DEFENDANT: Yes, there were.
THE COURT: And do you agree with the allegation that
by your engaging in this behavior those people that were
nearby were put in reasonable apprehension of serious
injury?
THE DEFENDANT: Yes.
THE COURT: Pardon me?
THE DEFENDANT: Yes.
THE COURT: And was your intent by doing this to
injure or provoke fear or anger in other people?
THE DEFENDANT: Yes.
THE COURT: And how many shots -- well, each of
Counts I, II, and III are based on an individual shot of the
weapon. Did you shoot the weapon three times at least?
THE DEFENDANT: Yes.
The court dismissed two counts charging Gines with intimidation
with a dangerous weapon with intent and did not apply the sentence
enhancements. The district court sentenced Gines to ten years each for
the three counts of intimidation with a dangerous weapon with intent,
and five years for the felon in possession of a firearm count. 1 All the
sentences ran consecutively.
Gines appealed, claiming his counsel was ineffective for allowing
him to plead guilty to three counts of intimidation with a dangerous
weapon with intent when there was no factual basis to support three
separate and distinct acts. He further claims the district court erred in
imposing consecutive sentences for the three counts of intimidation with
a dangerous weapon with intent. We transferred the case to our court of
1The judge incorporated two unrelated cases into the judgment. This resulted in
revocation of suspended sentences and concurrent sentencing with the thirty-five-year
sentence relevant to this case.
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appeals. It affirmed the district court judgment. Gines asked for further
review, which we granted.
II. Issues.
Although Gines raises two issues on appeal, the issue as to
whether Gines’s trial counsel was ineffective for allowing him to plead
guilty to three counts of intimidation with a dangerous weapon with
intent is dispositive of this appeal.
III. Standard of Review.
Ineffective-assistance-of-counsel claims are grounded in the Sixth
Amendment. State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). We review
ineffective-assistance-of-counsel claims de novo. Id.
IV. Gines’s Ineffective-Assistance-of-Counsel Claim.
We analyze ineffective-assistance-of-counsel claims under the two-
prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). Clay, 824 N.W.2d at
495. The first prong requires the defendant to show a deficiency in
counsel’s performance. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064,
80 L. Ed. 2d at 693. The presumption under this prong is the attorney
competently performed his duties. Clay, 824 N.W.2d at 495. The
defendant must rebut the presumption by “showing a preponderance of
the evidence demonstrates counsel failed to perform an essential duty.”
Id. When counsel makes such serious errors that counsel is not
functioning as the advocate the Sixth Amendment guarantees, counsel
breaches the essential duty. Id. “[W]e require more than a showing that
trial strategy backfired or that another attorney would have prepared and
tried the case somewhat differently.” Taylor v. State, 352 N.W.2d 683,
685 (Iowa 1984).
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The second prong requires the defendant show “the deficient
performance prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S.
Ct. at 2064, 80 L. Ed. 2d at 693. The defendant must show counsel’s
errors were so serious as to deprive the defendant of a fair trial. Id. at
687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The defendant must prove
by a reasonable probability the result of the proceeding would have
differed but for counsel’s errors. Id. at 694, 104 S. Ct. at 2068, 80
L. Ed. 2d at 698.
“The district court may not accept a guilty plea without first
determining that the plea has a factual basis.” State v. Schminkey, 597
N.W.2d 785, 788 (Iowa 1999). “Where a factual basis for a charge does
not exist, and trial counsel allows the defendant to plead guilty anyway,
counsel has failed to perform an essential duty.” Id. Prejudice is
inherent in such a case. Id. The only inquiry is whether the record
shows a factual basis for the guilty plea. Id. “[W]e consider the entire
record before the district court at the guilty plea hearing, including any
statements made by the defendant, facts related by the prosecutor, the
minutes of testimony, and the presentence report.” Id.
In State v. Ross, 845 N.W.2d 692 (Iowa 2014), we decided the issue
as to when multiple shots constitute separate and distinct acts of
intimidation with a dangerous weapon with intent or one continuous act
of intimidation with a dangerous weapon with intent. There, we said the
finder of fact must consider certain factors to determine if consecutive
shots are separate and distinct acts or one continuous act. The factors
we enumerated in Ross are:
(1) the time interval occurring between the successive
actions of the defendant, (2) the place of the actions, (3) the
identity of the victims, (4) the existence of an intervening act,
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(5) the similarity of defendant’s actions, and (6) defendant’s
intent at the time of his actions.
Ross, 845 N.W.2d at 705.
There are no facts in the record to establish Gines committed three
separate and distinct acts of intimidation with a dangerous weapon with
intent. Although the defendant conceded he fired three shots in the
presence of others, he did not concede each shot was a separate or
distinct act. Additionally, when asked about his intent at the time, he
stated that in making these shots he had the intent to injure or provoke
fear or anger in other people. Consequently, this factual basis is
insufficient to show the three shots fired constituted separate and
distinct acts supporting three counts of intimidation with a dangerous
weapon with intent. Therefore, counsel was ineffective for allowing Gines
to plead guilty to three counts of intimidation with a dangerous weapon
with intent when there was no factual basis for the three separate and
distinct acts.
V. Disposition.
Because it may be possible to establish a factual basis for three
separate and distinct acts of intimidation with a dangerous weapon with
intent, we vacate the convictions on the three counts of intimidation with
a dangerous weapon with intent and remand the case to the district
court to give the State the opportunity to establish a factual basis.
Schminkey, 597 N.W.2d at 792. If the State can establish a factual basis
for three separate and distinct charges of intimidation with a dangerous
weapon with intent, the district court shall resentence Gines on all
counts, including Gines’s conviction for a felon in possession of a firearm
count.
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If the State cannot establish a factual basis for three separate and
distinct charges of intimidation with a dangerous weapon with intent, the
State did not get the benefit of its plea bargain in exchange for
dismissing two counts of intimidation with a dangerous weapon with
intent and not seeking the habitual-offender sentencing enhancement.
Thus, if the State cannot establish the required factual basis for three
separate and distinct charges of intimidation with a dangerous weapon
with intent, we must put the State back in the position it was in before
making the plea agreement. State v. Allen, 708 N.W.2d 361, 369 (Iowa
2006). Therefore, if the State cannot establish the required factual basis
for three separate and distinct charges of intimidation with a dangerous
weapon with intent, the district court should vacate Gines’s conviction
for a felon in possession of a firearm count and return the State to the
position it had before the plea agreement. Additionally if this occurs, the
State may reinstate any charges or sentencing enhancements dismissed
from the first amended information in contemplation of the plea
agreement, file any additional charges supported by the available
evidence, and proceed against Gines on all charges and sentencing
enhancements contained in the first amended information and on any
new charges it wishes to file. See id.
DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF
DISTRICT COURT REVERSED, SENTENCES VACATED, AND CASE
REMANDED WITH DIRECTIONS.