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Dewberry v. State

Court of Appeals of Iowa

May 15, 2019

DAVID PALMER DEWBERRY, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

          Appeal from the Iowa District Court for Decatur County, John D. Lloyd, Judge.

         Applicant appeals the denial of his second postconviction-relief application. REVERSED AND REMANDED.

          Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant Attorney General, for appellee State.

          Considered by Vogel, C.J., Vaitheswaran, J., and Mahan, S.J. [*]

          VOGEL, CHIEF JUDGE

         David Dewberry pled guilty to first-degree robbery in December 2011. He filed his first postconviction relief (PCR) application in February 2013. That application was denied by the district court and affirmed by our court, finding he had not proven his ineffective-assistance claims. See Dewberry v. State, No. 14-1198, 2015 WL 7567514, at *6 (Iowa Ct. App. Nov. 25, 2015).[1] He now appeals the denial of his second PCR application. He claims he was wrongly denied a full PCR hearing to demonstrate his trial counsel was ineffective for failing to present an expert to testify on whether the BB gun he used during the incident was a dangerous weapon under Iowa Code section 711.2 (2011). See also Iowa Code § 702.7 (providing a dangerous weapon includes "any instrument or device of any sort whatsoever which is actually used in such a manner as to indicate that the defendant intends to inflict death or serious injury upon the other, and which, when so used, is capable of inflicting death upon a human being"). The PCR court found, "[T]his issue is foreclosed by his plea and the prior adjudication on his first [PCR] petition."

         At the 2011 plea hearing, the following colloquy occurred:

COURT: Mr. Dewberry, now we're to a point where I need to make a determination as to whether there is a factual basis for accepting your plea. In order to do so, I must ask you to tell me in your own words what you did that brings you here to plead guilty to this charge.
DEWBERRY: Well, Your Honor, on the day of July 16, 2011, I was going to commit a theft, and in doing so, I entered a residence that was not mine nor had any permission to enter and used the BB gun to put fear or threaten the residents of the home.
COURT: Was it a spring-loaded BB gun, or was it CO2?
DEWBERRY: It was just a spring-loaded, I think. It might have been CO2. I don't know. I never shot it.
COURT: Mr. Dewberry, one of the prongs, if you will, of a definition of a dangerous weapon is any instrument or device of any sort whatsoever which is actually used in such manner as to indicate that the defendant intends to inflict death or serious injury upon the other and which when so used is capable of ...

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