from the Iowa District Court for Scott County, Mark J. Smith,
applicant appeals from the denial of application for
D. Tindal of Tindal Law Office, P.L.C., Washington, for
J. Miller, Attorney General, and Benjamin M. Parrott,
Assistant Attorney General, for appellee State.
Considered by Vaitheswaran, P.J., Bower, J., and Blane, S.J.
Ross appeals from the district court's denial of his
application for postconviction relief (PCR).
was originally charged with one count of murder in the first
degree and seven counts of intimidation with a dangerous
weapon. At his jury trial, the jury heard evidence of the
On March 30, 2011, Joevante Howard was walking in a
neighborhood in Davenport with relatives and friends,
including Joevante's uncle, Milton Howard. The group was
traveling to the birthday party of Joevante's sister. The
group stopped at a local gas station to pick up beer and
other items before continuing to walk east on 12th Street
toward the birthday party. The group passed a house at the
corner of 12th Street and Pershing Avenue. The defendant Aki
Ross was sitting on the porch of this house with four or five
Ross saw the group pass the house, he went upstairs to
avoid an altercation with the group. Ross recognized Milton
in the group, yelled out the window to the group and to
Milton, and told Milton he did not want any problems. Ross
and Milton continued to talk to one another. Ross
eventually went downstairs to the porch because he knew
Milton and the group would not be leaving soon.
Milton and Ross argued. At one point, several people on the
porch physically restrained Ross, and one witness saw Ross
with a gun in his waistband. The argument lasted no more than
fifteen minutes. Milton told Ross to put down the gun and
come into the street and fight. When Ross refused to fight,
Milton ran to catch up with his group, who had continued
walking down Pershing Avenue. Ross returned to the house.
short time later Ross ran into the street with the gun and
began firing. The members of the group scattered. When Ross
began shooting, Milton ran behind a red van on the east
side of Pershing Avenue. Joevante was on the opposite side
of the street. One witness testified Ross fired three or
four shots and then stopped shooting. The witness testified
Joevante crossed the street as Ross began firing his gun
again. Milton saw a bullet hit Joevante in this second
round of shots. Joevante fell. Another person, Milton's
cousin Brett Roelandt, had a gun that day and fired one
shot at Ross.
Joevante received two gunshot wounds, one in the back of
his head and the other in his right thigh. His cause of death
was the gunshot wound to the head. The bullet recovered from
Joevante's head wound was a .45 caliber. The police
recovered eight .45 caliber auto-cartridge cases from the
scene. All eight cartridge cases came from the same firearm.
The criminalist at trial could not say whether the bullets
came from the same firearm. Ross stated at trial that on the
day of the shooting he possessed a .45 caliber semi-automatic
gun. Roelandt's gun shot .40 caliber ammunition. The
police found one .40 caliber cartridge at the scene.
State v. Ross, 845 N.W.2d 692, 695-96 (Iowa 2014).
The jury convicted Ross of the lesser-included offense of
voluntary manslaughter and five of the counts of intimidation
with a dangerous weapon.
filed a direct appeal, and a panel of our court affirmed his
convictions. He then filed an application for further review,
and our supreme court granted it. On further review, the
supreme court considered whether there was substantial
evidence to uphold Ross's five separate convictions for
intimidation with a dangerous weapon. Id. at 700-06.
The court questioned "how many acts of assault took
place on the assembly of people when Ross discharged his gun,
" before ultimately concluding Ross had committed only
two separate, distinct acts and thus could only be convicted
of two of the five charges. Id. at 702, 706. Based
on the supreme court's decision, three of Ross's
convictions for intimidation with a dangerous weapon were
was resentenced, receiving a ten-year sentence for each of
the three convictions. The district court ordered the three
sentences to be served consecutively.
then filed an application for PCR. In it, Ross argued his
remaining two convictions for intimidation with a dangerous
weapon should merge with his conviction for voluntary
manslaughter. He cited State v. Love, 858 N.W.2d
721, 724-25 (Iowa 2015), in which our supreme court
determined the defendant's convictions for assault with
intent to inflict serious injury and willful injury causing
bodily injury should merge because-although there was
substantial evidence to support the two convictions-one was a
lesser-included offense of the other and the jury had never
been asked "to determine if there were two or more
separate and distinct criminal acts." ...