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State of Iowa v. Tommy Gines Jr

April 24, 2013

STATE OF IOWA, PLAINTIFF-APPELLEE,
v.
TOMMY GINES JR., DEFENDANT-APPELLANT.



Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.

The opinion of the court was delivered by: Danilson, J.

Tommy Gines appeals from the conviction and sentences entered after his guilty pleas to three counts of intimidation with a dangerous weapon. He further asserts a claim of ineffective assistance of counsel. AFFIRMED.

Considered by Vaitheswaran, P.J., and Doyle and Danilson, JJ.

Tommy Gines appeals from the conviction and sentences entered after his guilty pleas to three counts of intimidation with a dangerous weapon. He asserts the charges should have merged and that the charges are not "separate offenses" for purposes of consecutive sentencing. Finally, Gines asserts that his counsel failed in an essential duty by allowing him to plead guilty to three counts of intimidation without a factual basis to support three separate charges. Pursuant to State v. Velez, ___ N.W.2d ___, (2013 WL 1497308) (Iowa 2013), we find the offense of intimidation with a dangerous weapon was completed when a shot was fired. The plea proceedings adequately established a factual basis for three counts. We therefore affirm.

I. Background Facts and Proceedings.

On May 6, 2011, after having an argument with his wife, Tommy Gines was asked to leave the Courtside Bar. He left and returned to the bar with a gun in his hand, yelling and demanding re-entry into the bar. When he was denied re-entry, Gines fired at least three shots*fn1 at the building and into the air. Gines had been previously convicted of a felony, and his right to possess firearms had not been restored.

On July 7, 2011, Gines pleaded guilty to three counts of intimidation with a dangerous weapon and a felon in possession of a firearm charge. He was immediately sentenced to consecutive terms of imprisonment: ten years for each intimidation charge and five years for the felon-in-possession charge, for a total of thirty-five years.*fn2

Gines asserts his convictions and sentences are in violation of Iowa Code sections 901.8 (2011)*fn3 and 701.9*fn4 and the Fifth Amendment to the United States Constitution. He further asserts his counsel was ineffective by allowing him to plead guilty to three counts of intimidation when the factual basis does not support separate charges.

II. Standard of Review.

Generally, we review challenges to guilty pleas for the correction of errors at law. State v. Ortiz, 789 N.W.2d 761, 764 (Iowa 2010). However, Gines claims his trial counsel was ineffective for allowing him to enter a guilty plea without a factual basis. We review constitutional claims de novo. See Velez, ___ N.W.2d at ___, 2013 WL 14997308 at *2 (Iowa 2013).

III. Discussion.

Gines' claims on appeal are intertwined. If there is a factual basis for three counts of intimidation with a dangerous weapon with intent, trial counsel was not ineffective. The threshold question then is whether Gines committed three acts meeting the statutory definition of intimidation with a dangerous weapon with intent. See id., at *11. Gines argues that all three charges for intimidation with a dangerous weapon are based on the same act-"rapidly fir[ing] a pistol."

To establish a claim of ineffective assistance of counsel, Gines must satisfy a two-pronged test. See Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012). He must demonstrate by a preponderance of the evidence that "(1) counsel failed to perform an essential duty, and (2) prejudice resulted." Id. (citation and internal quotation marks omitted). "Defense counsel violates an essential duty when counsel permits defendant to plead guilty and waive his right to file a motion in arrest of judgment when there is no factual basis to support defendant's guilty plea. Prejudice is presumed under these circumstances." Ortiz, 789 N.W.2d at 764--65 (citations omitted). Thus, in order to determine if Gines' counsel violated an essential duty resulting in prejudice, we must determine if there is a factual basis to support his guilty pleas.

In Velez, our supreme court observed that whether there exist sufficient factual bases to support multiple counts is determined by what the legislature intended as a "unit of prosecution" for a particular crime. 2013 WL 1497308 at *5-6. "In construing legislative intent, we look first to see if the legislature has defined the words it uses." Id. at *6. "If the legislature has not defined words of a statute, we may refer to prior decisions of this court and others, similar statutes, dictionary ...


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