Appeal from the Iowa District Court for Wapello County, Annette J. Scieszinski, Judge.
A defendant appeals from his judgment and sentence after conviction by jury trial of first degree robbery and assault while participating in a felony.
Michael O. Carpenter of Gaumer, Emanuel, Carpenter & Goldsmith, P.C., Ottumwa, for appellant.
Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson, Assistant Attorney General, Allen L. Cook III, County Attorney, for appellee.
Considered by Eisenhauer, C.J., and Potterfield, J., and Goodhue, S.J. [*]
Leonardo Rufin-Fones appeals from his judgment and sentence after conviction by jury trial of first-degree robbery and assault while participating in a felony. He asserts that counsel was ineffective in failing to object to certain testimony and that error was committed when the trial court failed to merge the two offenses at the time of sentencing.
I. Background Facts and Proceedings
Juana Zavada closed the grocery store where she worked at 9:00 p.m. on the night of February 28, 2008. She later returned to retrieve a plate of food she had left. While she was in the store a masked man entered behind her, put a knife to her body, and told her not to move back and to keep walking forward or he would kill her. She was taken to a room in the back of the store and her hands were tied with tape. She saw no one else in the store, but the masked man, who left quickly after tying her up. She soon discovered that jewelry, cash, and bags in which money had been placed were missing. She estimated that about $3000 had been taken. Because the masked man left so quickly, Zavada was certain that a second party had actually taken the missing items.
Investigating officers who were called were able to observe two sets of tracks in the freshly fallen snow, which led from the store, down an alley, and to an apartment building. One of the footprint sets was from a "big lug" type of boot and the other from an athletic or tennis shoe. The spacing between the footsteps indicated that they were both made by individuals who had been running.
Andrea Barton, the apartment tenant, admitted the officers and advised them that her two roommates had entered the apartment together about ten minutes earlier. One of the roommates was the defendant. Earlier in the day Barton and the defendant had argued over past due rent, and he had promised "he would get it and pay" her what he owed her. When the defendant and the other roommate, Palino Perez-Mondragon, had entered the apartment that evening, the defendant had gone directly to his bedroom and Perez to the bathroom. Neither came out until Barton summoned them after the police had arrived. The defendant emerged wearing unlaced boots. Initially he told the officers he had been wearing them outside, but later he pointed out a pair of tennis shoes he said he had been wearing. Both were observed to have dry soles. A pair of tennis shoes with wet soles was later found in the bedroom. The tread of those tennis shoes matched the tread marks in the snow. The defendant admitted they were his shoes.
A search warrant was obtained, and the proceeds of the theft were found in the defendant's bedroom. Stocking caps with eye-holes were found in the bathroom. When police asked the defendant what he had been doing that night he responded, "If I say it was me, what do I gain?" A motion to suppress the items retrieved from the apartment was filed and overruled. The ruling held that seizure of the second set of tennis shoes found in the bedroom was initially illegal, but because they would have been found anyway after the search warrant had been legally obtained and executed, they were deemed admissible. The search pursuant to the warrant was made approximately five hours after the officer first observed the tennis shoes. An officer testified without objection that the soles were wet when first observed.
The defendant was sentenced to a prison term not to exceed twenty-five years on the first-degree robbery conviction, with a minimum term of seventy percent before becoming eligible for parole. No fine was assessed for that charge. He was also sentenced to a concurrent term not to exceed five ...