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State v. Gines

Supreme Court of Iowa

March 21, 2014

STATE OF IOWA, Appellee,
v.
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.

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.

OPINION

Page 438

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

Page 439

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 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.
. . . ...

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